Resolution of Protest. If the Buyer and the Sellers are unable to resolve any disagreement with respect to any Sellers’ Return or Straddle Period Return within fifteen (15) days following the delivery of a Protest Notice, then either the Buyer or the Sellers may refer the items in dispute to the Independent Accountant. In such case, the Buyer and the Sellers will jointly retain the Independent Accountant and direct it to render a written report resolving any and all items in dispute as set forth in the Protest Notice, not later than thirty (30) days after acceptance of its retention. The Sellers and the Buyer shall each submit to the Independent Accountant a binder setting forth their specific information, evidence and support for their respective positions as to all items in dispute. Neither the Sellers nor the Buyer shall have or conduct any communication, either written or oral, with the Independent Accountant without the other Party either being present or receiving a concurrent copy of any written communication. The Sellers and the Buyer, and their respective Representatives, shall cooperate fully with the Independent Accountant during its engagement and respond on a timely basis to all requests for information or access to documents or personnel made by the Independent Accountant, all with the intent to fairly and in good faith resolve all disputes relating to the Sellers’ Return or the Straddle Period Return, as applicable, as promptly as reasonably practicable. The findings and determinations of the Independent Accountant as set forth in its written report shall be deemed final, conclusive and binding upon the Parties. In resolving any disputed item, the Independent Accountant (A) may not assign a value to any particular item greater than the greatest value for such item claimed by either the Sellers or the Buyer, or less than the lowest value for such item claimed by either the Sellers or the Buyer, in each case as presented to the Independent Accountant, (B) shall be bound by the principles set forth in this Section 7.1, and (C) shall limit its review to matters specifically set forth in the Protest Notice. The fees and expenses of the Independent Accountant shall be borne by the Sellers, on the one hand, and the Buyer, on the other hand, based upon the percentage that the amount not awarded to the Sellers bears to the amount actually contested by the Sellers.
Resolution of Protest. Within thirty (30) days after the Delivery Date (the “Objection Deadline”), Seller may deliver to Buyer a notice of objection (an “Objection Notice”) with respect to the Adjustment Amount Calculation. If no Objection Notice regarding the Adjustment Amount Calculation is delivered by Seller to Buyer by the Objection Deadline, the Adjustment Amount Calculation shall be final and binding on the parties hereto as the Adjustment Amount. Any Objection Notice regarding the Adjustment Amount Calculation shall specify the items in the Adjustment Amount Calculation disputed by Seller and shall describe the basis for the objection, as well as the amount in dispute. Any other items not so disputed by Seller shall be deemed “agreed upon”. If an Objection Notice is delivered in accordance with this Section 2.3(b), Buyer and Seller shall consult with each other with respect to the objection set forth therein. If Buyer and Seller are unable to reach agreement within fifteen (15) days after an Objection Notice has been given, all unresolved disputed items shall be promptly referred to an independent auditor which (i) has never provided services to either Buyer or Seller and (ii) is mutually acceptable to Buyer and Seller (the “Independent Accounting Firm”). The Independent Accounting Firm shall be directed to render a written report on the unresolved disputed issues with respect to the Adjustment Amount Calculation as promptly as practicable, but in no event more than thirty (30) days after such submission to the Independent Accounting Firm, and to resolve only those issues of dispute set forth in the Objection Notice. If unresolved disputed issues are submitted to the Independent Accounting Firm, Buyer and Seller will each furnish to the Independent Accounting Firm such bank statements and other documents and information relating to the unresolved disputed issues as the Independent Accounting Firm may reasonably request. The Independent Accounting Firm shall establish the procedures it shall follow (including procedures with regard to the presentation of evidence) giving due regard to the mutual intention of Seller and Buyer to resolve the disputed items and amounts as quickly, efficiently and inexpensively as possible. The resolution of the dispute and the calculation of the Adjustment Amount by the Independent Accounting Firm shall be final and binding on the parties hereto. The fees and expenses of the Independent Accounting Firm shall be allocated between Buyer and Se...
Resolution of Protest. If Buyer and Seller Representative are unable to resolve any disagreement as to the Closing Statement within thirty (30) days following Buyer’s receipt of the Protest Notice, then the amounts in dispute will be promptly referred to the Dallas, Texas office of Xxxxx Xxxxxxxx LLP, or to another independent accounting firm mutually acceptable to the Seller Representative and Buyer that has no conflict with either the Company, the Seller Representative, the Surviving Corporation or Buyer (the “Accountants”) for final arbitration, which arbitration shall be completed within sixty (60) days after the matter is submitted to the Accountants, and which arbitration shall be final and binding on the parties hereto absent manifest error and shall constitute an arbitral award that is final, binding and unappealable, and shall be used to determine the Final Net Working Capital, the Final Cash and/or the Final Indebtedness. Buyer and the Seller Representative shall request that their respective agents cooperate with the Accountants during its engagement. The Accountants shall act as an arbitrator to determine, based solely on presentations (so long as representative of both Parties are in attendance) and submissions by Buyer and Seller Representative (which presentations and submissions shall be made to the Accountants no later than thirty (30) days after the engagement of the Accountants), and not by independent review, only those amounts still in dispute. In addition, to the extent that a value has been assigned to any objection that remains in dispute, the Accountants shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either Party or less than the smallest value for such objection claimed by either Party. Buyer and Seller Representative agree to execute, if requested
Resolution of Protest. If a Protest Notice is timely delivered in accordance with Section 2.5(e), Seller and Buyer shall promptly endeavor in good faith to resolve any disagreement as to the Closing Statement. If Buyer and Seller are unable to resolve in writing any disagreement as to the Closing Statement within thirty (30) days following Buyer’s receipt of the Protest Notice, then the amounts set forth in the Protest Notice remaining in dispute will be promptly referred to Ernst & Young
Resolution of Protest. If, at the end of the thirty-day resolution period, the Buyer and the Sellers’ Representatives are unable to resolve any disagreements as to the Buyer’s calculation of the Final Closing Date Balance Sheet, then the Independent Accounting Firm shall resolve any remaining disagreements. The Independent Accounting Firm shall be charged with determining as promptly as practicable, but in any event within thirty (30) days after the date on which such dispute is referred to the Independent Accounting Firm, any disputed items required to determine the Final Closing Date Balance Sheet.
Resolution of Protest. Nord and the Board shall use commercially reasonable efforts to resolve, as soon as practicable, any Disputed EBITDA Items. If the Board and Nord are unable to resolve any such objection with respect to the Disputed EBITDA Items within twenty (20) days following Nord’s delivery of a Protest Notice, then either the Board or Nord may refer the unresolved items in dispute (the “Unresolved EBITDA Items”) to the Accountants. Promptly, but not later than thirty (30) days after acceptance of their appointment, or such longer period as Board and Nord may agree in writing, the Accountants will determine (based solely on written presentations to the Accountants by the Board and Nord and not by independent review) and will render a report as to the Unresolved EBITDA Items in dispute and the resulting calculation of EBITDA, which report will be conclusive and binding upon the parties for all purposes hereunder. In resolving any disputed Unresolved EBITDA Item, the Accountants (A) may not assign a value to any particular item greater than the greatest value for such item claimed by either party or less than the lowest value for such item claimed by either party, in each case as presented to the Accountants, (B) shall act as an expert and not as an arbitrator, (C) may not propose for resolution any matters that are not Unresolved Closing Items and (D) may not take ex parte oral testimony from the parties or any other Person. The fees and expenses of the Accountants shall be shared equally by the Company, on the one hand, and by Nord, on the other hand.
Resolution of Protest. If Santolubes and BU are unable to resolve any accounting disagreement with respect to the Revised Closing Date Balance Sheet and/or the Revised Closing Schedule within twenty (20) days following the delivery of any Protest Notice, then either BU or Santolubes may refer the items in dispute (the "Contested Items") to a nationally recognized firm of independent public accountants as to which BU and Santolubes mutually agree (the "Accountants"), which will not be the regular accounting firm of BU or Santolubes or any firm providing material services thereto. Any undisputed amount due from BU to Santolubes or Santolubes to BU, as the case may be, shall be paid within five (5) Business Days after delivery of the Protest Notice as set forth in Section 1.7(c)(ii), with payment calculated and paid as set forth in Section 1.7(c)(iv). Promptly, but not later than thirty (30) days after acceptance of their appointment, the Accountants will determine resolution of (based solely on presentations to the Accountants by BU and Santolubes and not by independent review) and will render a report as to the Contested Items and the resulting Revised Closing Date Balance Sheet and Revised Closing Schedule, which report will be conclusive and binding upon BU and Santolubes. In resolving any Contested Item, the Accountants may not assign a value to any particular item greater than the greatest value for such item claimed by BU or Santolubes or less than the lowest value for such item claimed by BU or Santolubes, in each case as presented to the Accountants. The fees and expenses of the Accountants shall be borne on a proportionate basis by each of BU and Santolubes, based on the inverse proportion of the respective percentages of the dollar value of disputed issues determined in favor of BU and Santolubes. In making its determination, the Accountants shall only consider the Contested Items that remain in dispute.
Resolution of Protest. If the Buyer and the Sellers’ Representative are unable to resolve any disagreement with respect to the calculation of Closing Date Cash, Closing Date Adjusted Net Working Capital, Closing Date Indebtedness, Closing Date Sale Transaction Expenses or Closing Purchase Price, within thirty (30) days following the delivery of any Protest Notice, then either the Buyer or the Sellers’ Representative may refer the items in dispute to the New York, New York office of Deloitte & Touche LLP or another independent accounting firm of national reputation reasonably satisfactory to the Buyer and the Sellers’ Representative (the “Independent Accountant”). In such case, the Buyer and the Sellers’ Representative will jointly retain the Independent Accountant and direct it to render a written report setting forth its determination of the Closing Date Cash, Closing Date Adjusted Net Working Capital, Closing Date Indebtedness, Closing Date Sale Transaction Expenses and Closing Purchase Price, resolving any and all items in dispute (as set forth in the Protest Notice), not later than forty‑five (45) days after acceptance of its retention. The Sellers’ Representative and the Buyer shall each submit to the Independent Accountant a binder setting forth their respective computations of the Closing Date Cash, Closing Date Adjusted Net Working Capital, Closing Date Indebtedness, Closing Date Sale Transaction Expenses and Closing Purchase Price, and specific information, evidence and support for their respective positions as to all items in dispute. Neither the Sellers’ Representative nor the Buyer shall have or conduct any communication, either written or oral, with the Independent Accountant without the other Party either being present or receiving a concurrent copy of any written communication. The Sellers’ Representative and the Buyer, and their respective Representatives, shall cooperate fully with the Independent Accountant during its engagement and respond on a timely basis to all requests for information or access to documents or personnel made by the Independent Accountant, all with the intent to fairly and in good faith resolve all disputes relating to the Closing Date Cash, Closing Date Adjusted Net Working Capital, Closing Date Indebtedness, Closing Date Sale Transaction Expenses and Closing Purchase Price, as promptly as reasonably practicable. The Independent Accountant shall conduct its review, resolve all disputes and, to the extent necessary, compute the Closing Date...
Resolution of Protest. If the Buyer and the Seller are unable to resolve any disagreement with respect to the Closing Schedule as set forth in Section 2.2(b)(ii) days following the delivery of any Protest Notice, then either the Seller or the Buyer may refer the items in dispute to RSM US LLP is unable to assist then another nationally
Resolution of Protest. If a Protest Notice is timely delivered in accordance with Section 3(c), the Stockholder Representative and Company shall promptly endeavor in good faith to resolve any disagreement as to the Closing Schedule. If the Company and the Stockholder Representative are unable to resolve in writing any disagreement as to the Closing Schedule within thirty (30) days following Company’s receipt of the Protest Notice, then the dispute will be promptly referred to Gxxxx Xxxxxxxx, LLP (the “Accountants”) for final determination, which the Accountants shall be instructed to make within thirty (30) days after the matter is submitted to them, and which determination shall be final, binding and non-appealable. The Accountants shall act as an expert (and not an arbitrator) to determine, based solely on written presentations and submissions by the Company and the Stockholder Representative (which presentations and submissions shall be made to the Accountants no later than fifteen (15) days after the engagement of the Accountants), and not by independent review, only those amounts still in dispute, in each case, in accordance with the applicable definitions set forth herein. The Accountants shall pick the position of either the Company or the Stockholder Representative for each item in dispute. The Company and the Stockholder Representative agree to execute, if requested by the Accountants, a reasonable engagement letter. The fees and expenses of the Accountants shall be allocated between Company, on the one hand, and the Stockholders, on the other hand (pro rata in accordance with their Holder Percentages), so that the Stockholders’ aggregate share of such fees and expenses shall be equal to the product of (i) the aggregate amount of such fees and expenses, and (ii) a fraction, the numerator of which is the amount in dispute that is ultimately unsuccessfully disputed by the Stockholder Representative (as determined by the Accountant) and the denominator of which is the total amount in dispute submitted to arbitration. Payment of the Stockholders’ obligation with respect to such fees shall be paid by offset against the outstanding principal amount due and payable pursuant to the Merger Notes consistent with Section 3(f)(i). The balance of such fees and expenses shall be paid by the Company. Notwithstanding anything herein to the contrary, the Parties acknowledge and agree that the intent of the Parties is to determine the items to be set forth in the Closing Schedule in acco...
