Common use of Resolution of the Protest Clause in Contracts

Resolution of the Protest. If Buyer shall receive a Protest Notice from Seller delivered pursuant to and in accordance with Section 1.4(d), then Buyer and Seller shall use their respective good faith efforts to resolve all disputed items and amounts set forth in the Protest Notice pursuant to good faith negotiations. In the event that Buyer and Seller shall reach agreement, within thirty (30) calendar days following Buyer’s receipt of a Protest Notice, on all disputed items and amounts set forth in such Protest Notice, then for all purposes of and under this Agreement, the term “Final Net Working Capital” shall mean the Net Working Capital as agreed upon by Buyer and Seller and any such resolution shall be final and binding on the Parties for purposes of this Section 1.4. If Buyer and Seller are unable to resolve any disagreement with respect to the Closing Schedule within thirty (30) days following Buyer’s receipt of the Protest Notice, then only the amounts in dispute will be referred to Ernst & Young (the “Accountants”) for final determination within forty-five (45) days after such referral. The determination by the Accountants of the amounts in dispute shall be based solely on presentations by Buyer and Seller, and shall not involve the Accountants’ independent review. Any determination by the Accountants shall not be outside the range defined by the respective amounts in the Closing Schedule proposed by Buyer and Seller’s proposed adjustments thereto set forth in the Protest Notice, and such determination shall be final, binding and non-appealable. Each of Buyer, on the one hand, and Seller on the other hand, shall bear that percentage of the fees and expenses of the Accountants equal to the proportion (expressed as a percentage and determined by the Accountants) of the dollar value of the disputed amounts determined in favor of the other party by the Accountants. For purposes of this Agreement, “Final Net Working Capital” means Net Working Capital as finally determined pursuant to this Section 1.4(e).

Resolution of the Protest. If Buyer Parent and the Shareholders’ Representative shall receive confer and attempt to resolve any properly disputed amounts contained in a timely provided Protest Notice from Seller delivered pursuant to and in accordance with Section 1.4(d), then Buyer and Seller shall use their respective good faith efforts to resolve all disputed items and amounts set forth in 2.11(b)(ii)during the Protest Notice pursuant to good faith negotiations. In the event that Buyer and Seller shall reach agreement, within thirty (30) calendar days 30 day period following Buyer’s receipt of a Protest Notice, on all disputed items and amounts set forth in such Protest Notice, then for all purposes of and under this Agreement, the term “Final Net Working Capital” shall mean the Net Working Capital as agreed upon by Buyer and Seller and any such resolution shall be final and binding on the Parties for purposes of this Section 1.4. If Buyer and Seller are unable to resolve any disagreement with respect to the Closing Schedule within thirty (30) days following BuyerParent’s receipt of the Protest Notice. Any written resolution as to any such disputed matter signed by each of Parent and the Shareholders’ Representative, shall be final, binding and non-appealable. If Parent and the Shareholders’ Representative are unable to so resolve in writing any such disagreement within such 30 day period, then only the amounts any matters that remain in dispute will will, at the written request of Parent or the Shareholders’ Representative, be referred to Ernst & Young LLP (the “AccountantsAccountant”) for final determination ), which will be instructed to determine the amounts in dispute within forty-five (45) 45 days after such referral. The determination by the Accountants Accountant (which will be as an expert and not as an arbitrator) shall not include any legal interpretation of this Agreement, and shall be limited only to the amounts in dispute dispute, and shall be based solely on presentations by Buyer Parent and Sellerthe Shareholders’ Representative, copies of which will be provided to one another, and shall not involve the Accountants’ Accountant’s independent review. Any determination by the Accountants Accountant (A) shall not be outside the range defined by the respective amounts in the Post-Closing Schedule Statement proposed by Buyer Parent and Sellerthe Shareholders’ Representative’s proposed adjustments thereto set forth in the Protest Notice, (B) shall include a worksheet setting forth the reason for the resolution of each disputed amount, the material calculation used in reaching that resolution, and such determination the allocation of fees and expenses determined in accordance with the last sentence of this Section 2.11(b)(iii), and (C) absent manifest mathematical error, shall be final, binding and non-appealable. Each of BuyerParent and the Shareholders’ Representative shall (1) execute and deliver a customary engagement letter as may be requested by the Accountant, and (2) reasonably cooperate with the Accountant during the term of such firm’s engagement; provided, that no disclosure will be made to the Accountant, and the Accountant will not consider for any purpose, any settlement discussions or offers made with respect to matters contained in the Protest Notice or otherwise, nor shall there be any ex parte communications or meetings with the Accountant, unless in each instance expressly agreed to in advance in writing by Parent and the Shareholders’ Representative. Parent, on the one hand, and Seller the Shareholders and Optionholders (jointly and severally) on the other hand, shall bear that percentage of the fees and expenses of the Accountants Accountant equal to the proportion (expressed as a percentage and determined by the AccountantsAccountant) of the dollar value of the disputed amounts determined in favor of the other party by the Accountants. For purposes of this Agreement, “Final Net Working Capital” means Net Working Capital as finally determined pursuant to this Section 1.4(e)Accountant.

Resolution of the Protest. If Buyer Parent and the Stockholders’ Representative shall receive confer and attempt to resolve any properly disputed amounts contained in a timely provided Protest Notice from Seller delivered pursuant to and in accordance with Section 1.4(d), then Buyer and Seller shall use their respective good faith efforts to resolve all disputed items and amounts set forth in 1.8(b)(ii) during the Protest Notice pursuant to good faith negotiations. In the event that Buyer and Seller shall reach agreement, within thirty (30) calendar days -day period following Buyer’s receipt of a Protest Notice, on all disputed items and amounts set forth in such Protest Notice, then for all purposes of and under this Agreement, the term “Final Net Working Capital” shall mean the Net Working Capital as agreed upon by Buyer and Seller and any such resolution shall be final and binding on the Parties for purposes of this Section 1.4. If Buyer and Seller are unable to resolve any disagreement with respect to the Closing Schedule within thirty (30) days following BuyerParent’s receipt of the Protest Notice. Any written resolution as to any such disputed matter signed by each of Parent and the Stockholders’ Representative, shall be final, binding and non-appealable. If Parent and the Stockholders’ Representative are unable to so resolve in writing any such disagreement within such 30-day period, then only the amounts any matters that remain in dispute will will, at the written request of Parent or the Stockholders’ Representative, be referred to Ernst & Young LLP (the “AccountantsAccountant”) for final determination ), which will be instructed to determine the amounts in dispute within forty-five (45) 30 days after such referral. The determination by the Accountants Accountant (which will be as an expert and not as an arbitrator) shall not include any legal interpretation of this Agreement, and shall be limited only to the amounts in dispute dispute, and shall be based solely on presentations by Buyer Parent and Sellerthe Stockholders’ Representative, copies of which will be provided to one another, and shall not involve the Accountants’ Accountant’s independent review. Any determination by the Accountants Accountant (A) shall not be outside the range defined by the respective amounts in the Post-Closing Schedule Statement proposed by Buyer Parent and Sellerthe Stockholders’ Representative’s proposed adjustments thereto set forth in the Protest Notice, (B) shall include a worksheet setting forth the reason for the resolution of each disputed amount, the material calculation used in reaching that resolution, and such determination the allocation of fees and expenses determined in accordance with the last sentence of this Section 1.8(b)(iii), and (C) absent manifest mathematical error, shall be final, binding and non-appealable. Each of BuyerParent and the Stockholders’ Representative shall (1) execute and deliver a customary engagement letter as may be requested by the Accountant, and (2) reasonably cooperate with the Accountant during the term of such firm’s engagement; provided, that no disclosure will be made to the Accountant, and the Accountant will not consider for any purpose, any settlement discussions or offers made with respect to matters contained in the Protest Notice or otherwise, nor shall there be any ex parte communications or meetings with the Accountant, unless in each instance expressly agreed to in advance in writing by Parent and the Stockholders’ Representative. Parent, on the one hand, and Seller the Stockholders, on the other hand, shall bear that percentage of the fees and expenses of the Accountants Accountant equal to the proportion (expressed as a percentage and determined by the AccountantsAccountant) of the dollar value of the disputed amounts determined in favor of the other party by the Accountants. For purposes of this Agreement, “Final Net Working Capital” means Net Working Capital as finally determined pursuant to this Section 1.4(e)Accountant.

Resolution of the Protest. If Buyer shall receive a Protest Notice from Seller delivered pursuant to and in accordance with Section 1.4(d), then Buyer and Seller shall use their respective good faith efforts to resolve all disputed items and amounts set forth in the Protest Notice pursuant to good faith negotiations. In the event that Buyer and Seller shall reach agreement, within thirty (30) calendar days following Buyer’s receipt of a Protest Notice, on all disputed items and amounts set forth in such Protest Notice, then for all purposes of and under this Agreement, the term “Final Net Working Capital” shall mean the Net Working Capital as agreed upon by Buyer and Seller and any such resolution shall be final and binding on the Parties for purposes of this Section 1.4. If Buyer and Seller are unable to resolve any disagreement with respect to the Actual Closing Schedule within thirty (30) days following Buyer’s receipt of the Protest Notice, then only the amounts in dispute will be referred to Ernst & Young an independent accountant of nationally recognized standing mutually agreed upon by Buyer and Seller, (the “Accountants”) for final determination within forty-five (45) days after such referral. The determination by the Accountants of the amounts in dispute shall be based solely on presentations by Buyer and Seller, and shall not involve the Accountants’ independent review. Any determination by the Accountants shall not be outside the range defined by the respective amounts in the Actual Closing Schedule proposed by Buyer and Seller’s proposed adjustments thereto set forth in the Protest Notice, and absent manifest mathematical error such determination shall be final, binding and non-appealable. Each of Buyer, on the one hand, and Seller on the other hand, shall bear that percentage of the fees and expenses of the Accountants equal to the proportion percentage (expressed as a percentage and determined by the Accountants) which the aggregate portion of the dollar value contested amount as set forth in the Actual Closing Schedule in the case of Buyer or the Protest Notice in the case of Seller, not awarded to such party bears to the aggregate amount actually contested by such party. For example, if Seller claims the Closing Cash is $1,000 greater than the amount determined by Buyer, and Buyer contests only $500 of the disputed amounts determined in favor amount claimed by Seller, and if the Accountants ultimately resolves the dispute by awarding Seller $300 of the other party by $500 contested, then the Accountants. For purposes fees and expenses of this Agreementthe Accountants will be allocated 60% (i.e., “Final Net Working Capital” means Net Working Capital as finally determined pursuant 300 ÷ 500) to this Section 1.4(e)Buyer and 40% (i.e., 200 ÷ 500) to Seller.

Resolution of the Protest. If Buyer Parent and the Stockholders’ Representative shall receive confer and attempt to resolve any properly disputed amounts contained in a timely provided Protest Notice from Seller delivered pursuant to and in accordance with Section 1.4(d), then Buyer and Seller shall use their respective good faith efforts to resolve all disputed items and amounts set forth in 2.11(b)(ii) during the Protest Notice pursuant to good faith negotiations. In the event that Buyer and Seller shall reach agreement, within thirty (30) calendar days 15 day period following Buyer’s receipt of a Protest Notice, on all disputed items and amounts set forth in such Protest Notice, then for all purposes of and under this Agreement, the term “Final Net Working Capital” shall mean the Net Working Capital as agreed upon by Buyer and Seller and any such resolution shall be final and binding on the Parties for purposes of this Section 1.4. If Buyer and Seller are unable to resolve any disagreement with respect to the Closing Schedule within thirty (30) days following BuyerParent’s receipt of the Protest Notice. Any written resolution as to any such disputed matter signed by each of Parent and the Stockholders’ Representative, shall be final, binding and non-appealable. If Parent and the Stockholders’ Representative are unable to so resolve in writing any such disagreement within such 30 day period, then only any matters that remain in dispute will, at the written request of Parent or the Stockholders’ Representative, be referred to an independent accountant of nationally recognized standing mutually agreed upon by Parent and the Stockholders’ Representative, which shall be one of the “Big Four” accounting firms (the “Accountant”), which will be instructed to determine the amounts in dispute will be referred to Ernst & Young (the “Accountants”) for final determination within forty-five (45) 30 days after such referral. The determination by the Accountants Accountant (which will be as an expert and not as an arbitrator) shall not include any legal interpretation of this Agreement, and shall be limited only to the amounts in dispute dispute, and shall be based solely on presentations by Buyer Parent and Sellerthe Stockholders’ Representative, copies of which will be provided to one another, and shall not involve the Accountants’ Accountant’s independent review. Any determination by the Accountants Accountant (A) shall not be outside the range defined by the respective amounts in the Post-Closing Schedule Statement proposed by Buyer Parent and Sellerthe Stockholders’ Representative’s proposed adjustments thereto set forth in the Protest Notice, (B) shall include a worksheet setting forth the reason for the resolution of each disputed amount, the material calculation used in reaching that resolution, and such determination the allocation of fees and expenses determined in accordance with the last sentence of this Section 2.11(b)(iii), and (C) absent manifest mathematical error, shall be final, binding and non-appealable. Each of BuyerParent and the Stockholders’ Representative shall (1) execute and deliver a customary engagement letter as may be requested by the Accountant, and (2) reasonably cooperate with the Accountant during the term of such firm’s engagement; provided, that no disclosure will be made to the Accountant, and the Accountant will not consider for any purpose, any settlement discussions or offers made with respect to matters contained in the Protest Notice or otherwise, nor shall there be any ex parte communications or meetings with the Accountant, unless in each instance expressly agreed to in advance in writing by Parent and the Stockholders’ Representative. Parent, on the one hand, and Seller the Stockholders and Optionholders (jointly and severally) on the other hand, shall bear that percentage of the fees and expenses of the Accountants Accountant equal to the proportion (expressed as a percentage and determined by the AccountantsAccountant) of the dollar value of the disputed amounts determined in favor of the other party by the Accountants. For purposes of this Agreement, “Final Net Working Capital” means Net Working Capital as finally determined pursuant to this Section 1.4(e)Accountant.

Resolution of the Protest. If Buyer shall receive a Protest Notice from Seller delivered pursuant to and in accordance with Section 1.4(d), then Buyer and Seller shall use their respective good faith efforts to resolve all disputed items and amounts set forth in the Protest Notice pursuant to good faith negotiations. In the event that Buyer and Seller shall reach agreement, within thirty (30) calendar days following Buyer’s receipt of a Protest Notice, on all disputed items and amounts set forth in such Protest Notice, then for all purposes of and under this Agreement, the term “Final Net Working Capital” shall mean the Net Working Capital as agreed upon by Buyer and Seller and any such resolution shall be final and binding on the Parties for purposes of this Section 1.4. If Buyer and Seller are unable to resolve any disagreement with respect to the Closing Schedule within thirty (30) 30 days following Buyer’s receipt of the Protest Notice, then only the amounts in dispute will be referred to Ernst & Young PricewaterhouseCoopers LLP or, if such firm is engaged by Buyer or any Seller Party for audit or accounting services, or unable or unwilling to act, such other public accounting firm as shall be agreed in writing by Seller and Buyer (the “Accountants”) for final determination within forty-five (45) 45 days after such referral. The determination by the Accountants of the amounts in dispute shall be based solely on presentations by Buyer and Seller, and shall not involve the Accountants’ independent review. Any determination by the Accountants shall not be outside the range defined by the respective amounts in the Closing Schedule proposed by Buyer and Seller’s proposed adjustments thereto set forth in the Protest Notice, and absent manifest mathematical error such determination shall be final, binding and non-appealableappealable on the Parties. Each of Buyer and Seller shall execute and deliver a customary engagement letter as may be requested by the Accountants, and each of Buyer, on the one hand, and Seller Seller, on the other hand, shall bear that percentage of the fees and expenses of the Accountants equal to the proportion (expressed as a percentage and determined by the Accountants) of the dollar value of the disputed amounts determined in favor of the other party by the Accountants. For purposes of this Agreement, “Final Net Working Capital” means Net Working Capital as finally determined pursuant to this Section 1.4(e)2.5.