Common use of Timing and Dispute Resolution Clause in Contracts

Timing and Dispute Resolution. Any payments or other benefits otherwise due to the Executive following a Change in Ownership or Control that could reasonably be characterized (as determined by the Company) as Contingent Compensation Payments (the "Potential Payments") shall not be made until the dates provided for in this Section. Within 30 days after the date of such Change in Ownership or Control, the Company shall determine and notify the Executive (with reasonable detail regarding the basis for its determinations) (i) which Potential Payments constitute Contingent Compensation Payments, (ii) the Eliminated Amount and (iii) whether the Override is applicable. Within 30 days after delivery of such notice to the Executive, the Executive shall deliver a response to the Company (the "Executive Response") stating either (A) that he agrees with the Company's determination pursuant to the preceding sentence, in which case he shall indicate, if applicable, which Contingent Compensation Payments, or portions thereof (the aggregate amount of which, determined in accordance with Proposed Treasury Regulation Section 1.280G-1, QA-30 or any successor provision, shall be equal to the Eliminated Amount), shall be treated as Eliminated Payments or (B) that he disagrees with such determination, in which case he shall indicate which Potential Payments should be characterized as Contingent Compensation Payments, the Eliminated Amount, whether the Override is applicable, and, which (if any) Contingent Compensation Payments, or portions thereof (the aggregate amount of which, determined in accordance with Proposed Treasury Regulation Section 1.28OG-1, QA-30 or any successor provision, shall be equal to the Eliminated Amount, if any), shall be treated as Eliminated Payments. In the event that the Executive fails to deliver an Executive Response on or before the required date, the Company's initial determination shall be final and the Contingent Compensation Payments that shall be treated as Eliminated Payments shall be determined by the Company in its absolute discretion. If the Executive states in the Executive Response that he agrees with the Company's determination, the Company shall make the Potential Payments to the Executive within three business days following delivery to the Company of the Executive Response (except for any Potential Payments which are not due to be made until after such date, which Potential Payments shall be made on the date on which they are due). If the Executive states in the Executive Response that he disagrees with the Company's determination, then, for a period of 60 days following delivery of the Executive Response, the Executive and the Company shall use good faith efforts to resolve such dispute. If such dispute is not resolved within such 60-day period, such dispute shall be settled exclusively by arbitration in Boston, Massachusetts, in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator's award in any court having jurisdiction. The Company shall, within three business days following delivery to the Company of the Executive Response, make to the Executive those Potential Payments as to which there is no dispute between the Company and the Executive regarding whether they should be made (except for any such Potential Payments which are not due to be made until after such date, which Potential Payments shall be made on the date on which they are due). The balance of the Potential Payments shall be made within three business days following the resolution of such dispute. The amount of any payments to be made to the Executive following the resolution of such dispute shall be increased by amount of the accrued interest thereon computed at the prime rate announced from time to time by the Wall Street Journal, compounded monthly from the date that such payments originally were due.

Timing and Dispute Resolution. Any payments or other benefits otherwise due to the Executive following a Change in Ownership or Control that could reasonably be characterized Within ninety (as determined by the Company90) as Contingent Compensation Payments (the "Potential Payments") shall not be made until the dates provided for in this Section. Within 30 days after the date of such Change in Ownership or ControlClosing Date (assuming Sellers’ reasonable cooperation under Section 1.07(c)), the Company Buyer shall determine prepare and notify the Executive (with reasonable detail regarding the basis for its determinations) deliver to Holdings (i) which Potential Payments constitute Contingent Compensation Paymentsa statement setting forth Buyer’s good faith calculation of (A) the Working Capital as of the Closing Date and the Working Capital Surplus or Working Capital Deficit, if any, (B) the Cash Amount, and (C) based on the amounts set forth in clauses (A) and (B), the Cash Payment (the “Closing Statement”) and (ii) all records and work papers necessary to compute and verify the Eliminated Amount information set forth in the Closing Statement. After delivery of the Closing Statement, Holdings and its accountants shall be permitted to make inquiries of the Buyer and its accountants regarding questions concerning or disagreements with the Closing Statement that arise in the course of their review thereof. If Holdings has any objections to the Closing Statement, then Holdings shall deliver to Buyer a statement (iiian “Objection Statement”) whether setting forth its disputes or objections (the Override “Objection Disputes”) to the Closing Statement and, to the extent practical, Holdings’ proposed resolution of each such Objection Dispute. If an Objection Statement is applicable. Within 30 not delivered to Buyer within thirty (30) days after delivery of such notice the Closing Statement, then the Closing Statement as originally delivered by Buyer shall be final, binding and non-appealable by the Parties. If an Objection Statement is timely delivered, then Buyer and Holdings shall negotiate in good faith to resolve any Objection Disputes, but if they do not reach a final resolution within thirty (30) days after the Executivedelivery of the Objection Statement, Holdings and Buyer shall submit each unresolved Objection Dispute to a nationally recognized, impartial, independent auditor to be agreed upon by the Executive shall deliver a response to the Company Parties (the "Executive Response"“Independent Auditor”) stating either (A) that he agrees with the Company's determination pursuant to the preceding sentenceresolve such Objection Disputes. The Independent Auditor shall be instructed to set forth a procedure to provide for prompt resolution of any unresolved Objection Disputes and, in which case he shall indicateany event, if applicable, which Contingent Compensation Payments, or portions thereof to make its determination in respect of such Objection Disputes within thirty (the aggregate amount 30) days following its retention. The Independent Auditor’s determination of which, determined in accordance with Proposed Treasury Regulation Section 1.280G-1, QA-30 or any successor provision, shall be equal to the Eliminated Amount), shall be treated as Eliminated Payments or (B) that he disagrees with such determination, in which case he shall indicate which Potential Payments should be characterized as Contingent Compensation Payments, the Eliminated Amount, whether the Override is applicable, and, which (if any) Contingent Compensation Payments, or portions thereof (the aggregate amount of which, determined in accordance with Proposed Treasury Regulation Section 1.28OG-1, QA-30 or any successor provision, shall be equal to the Eliminated Amount, if any), shall be treated as Eliminated Payments. In the event that the Executive fails to deliver an Executive Response on or before the required date, the Company's initial determination Objection Disputes shall be final and binding upon the Contingent Compensation Payments Parties; provided, however, that no such determination with respect to any item reflected in the Objection Statement shall be treated as Eliminated Payments any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to Holdings than is proposed in the Objection Statement. If any unresolved Objection Disputes are submitted to the Independent Auditor, then, for purposes of this Section 1.07(a), Buyer shall be the prevailing party in such proceeding if a majority of the dollar amount of the unresolved Objection Disputes are decided by the Independent Auditor in favor of Buyer, and Holdings shall be the prevailing party if a majority of the dollar amount of the unresolved Objection Disputes are decided by the Independent Auditor in favor of Holdings (e.g., if there are $200,000 of disputed items to be determined by the Company in its absolute discretion. If the Executive states in the Executive Response that he agrees with the Company's determination, the Company shall make the Potential Payments to the Executive within three business days following delivery to the Company of the Executive Response (except for any Potential Payments which are not due to be made until after such date, which Potential Payments shall be made on the date on which they are due). If the Executive states in the Executive Response that he disagrees with the Company's determination, then, for a period of 60 days following delivery of the Executive Response, the Executive Independent Auditor and the Company shall use good faith efforts Independent Auditor determines that Buyer’s claims prevail with respect to resolve such dispute. If such dispute is not resolved within such 60-day period$125,000 and Holdings’ claims prevail with respect to $75,000, such dispute shall then Buyer would be settled exclusively by arbitration in Boston, Massachusetts, in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator's award in any court having jurisdiction. The Company shall, within three business days following delivery to the Company of the Executive Response, make to the Executive those Potential Payments as to which there is no dispute between the Company and the Executive regarding whether they should be made (except for any such Potential Payments which are not due to be made until after such date, which Potential Payments shall be made on the date on which they are dueprevailing party). The balance party that is not the prevailing party shall pay all of the Potential Payments fees, costs and expenses of the Independent Auditor. The final Closing Statement, however determined pursuant to this Section 1.07(a), will produce the Working Capital Surplus or Working Capital Deficit, if any, and the Cash Amount, in each case to be used to determine the final Cash Payment. The process set forth in this Section 1.07(a) shall be made within three business days following the resolution exclusive remedy of such dispute. The amount the Parties for any disputes related to items required to be reflected on the Closing Statement or included in the calculation of the Working Capital, the Cash Amount, whether or not the underlying facts and circumstances constitute a breach of any payments to be made to the Executive following the resolution of such dispute shall be increased by amount of the accrued interest thereon computed at the prime rate announced from time to time by the Wall Street Journal, compounded monthly from the date that such payments originally were duerepresentations or warranties.