Common use of DISPUTE MECHANISM Clause in Contracts

DISPUTE MECHANISM. If the Stockholders’ Representative does not deliver written notice of any dispute (an “Earnout Dispute Notice”) to Parent within thirty (30) days after receiving the Proposed Earnout Calculations, the Proposed Earnout Calculations shall be deemed to set forth the final Earnout Payment, and shall be final and binding upon the Parties. Prior to the end of such thirty (30)-day period, the Stockholders’ Representative may accept the Proposed Earnout Calculations by delivering written notice to that effect to Parent, in which case the Proposed Earnout Calculations shall be deemed to set forth the final Earnout Payment and shall be final and binding upon the Parties when such notice is given. If the Stockholders’ Representative delivers an Earnout Dispute Notice to Parent within such thirty (30)-day period, Parent and the Stockholders’ Representative shall use good faith efforts to resolve the dispute during the thirty (30)-day period commencing on the date Parent receives the Earnout Dispute Notice from the Stockholders’ Representative. Any Earnout Dispute Notice shall include the Stockholders’ Representative’s alternative calculations with respect to each component of the Proposed Earnout Calculations, along with the basis for and amount of each disputed item, together with supporting documentation. If the Stockholders’ Representative and Parent do not agree upon a final resolution with respect to any disputed items within such thirty (30)-day period, then the remaining items in dispute shall be submitted promptly to the Accounting Firm. Any item not specifically submitted to the Accounting Firm for evaluation shall be deemed final and binding on the Parties (as set forth in the Proposed Earnout Calculations, the Earnout Dispute Notice or as otherwise resolved in writing by Parent and the Stockholders’ Representative). The Accounting Firm shall be requested to render a determination of each disputed item within forty-five (45) days after referral of the matter to the Accounting Firm, which determination must be in writing and must set forth, in reasonable detail, the basis therefor and must be based solely on (A) the definitions and other applicable provisions of this Agreement, (B) a single presentation (which presentations shall be limited to the remaining items in dispute set forth in the Proposed Earnout Calculations and the Earnout Dispute Notice) submitted by each of Parent and the Stockholders’ Representative to the Accounting Firm within fifteen (15) days after the engagement thereof (which the Accounting Firm shall forward to Parent or the Stockholders’ Representative, as applicable), (C) one (1) written response to the Stockholders’ Representative’s initial presentation, which response may be submitted to the Accounting Firm by Parent within five (5) Business Days after receipt of the Stockholders’ Representative’s initial presentation (which the Accounting Firm shall forward to the Stockholders’ Representative), and (D) one (1) written response to Parent’s initial presentation, which response may be submitted to the Accounting Firm by the Stockholders’ Representative within five (5) Business Days after receipt of Parent’s initial presentation (which the Accounting Firm shall forward to Parent), and not on independent review, which such determination shall be conclusive and binding on each Party. Ex parte communications by the Accounting Firm with Parent or Stockholders’ Representative regarding substantive matters in connection herewith shall be prohibited. The terms of appointment and engagement of the Accounting Firm shall be as reasonably agreed upon between the Stockholders’ Representative and Parent, and any associated engagement fees shall be initially borne 50% by the Stockholders’ Representative (solely on behalf of the Company Stockholders) and 50% by Parent; provided, however, that such fees shall ultimately be borne by Parent and the Stockholders’ Representative (solely on behalf of the Company Stockholders) in the same proportion as the aggregate amount of the disputed items that is unsuccessfully disputed by each such Party (as determined by the Accounting Firm) bears to the total amount of the disputed items submitted to the Accounting Firm. Except as provided in the preceding sentence, all other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the Party incurring such cost and expense. The Accounting Firm shall resolve each disputed item by choosing a value not in excess of, nor less than, the greatest or lowest value, respectively, set forth in the presentations (and, if applicable, the responses) delivered to the Accounting Firm pursuant to this Section 5. The Proposed Earnout Calculations shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section 5 and, as so revised, such Proposed Earnout Calculations shall be deemed to set forth the final Earnout Payment, for all purposes hereunder and shall be final and binding upon the Parties.

DISPUTE MECHANISM. If the Stockholders’ Seller Representative does not deliver written notice of any dispute (and Buyer fail to reach an “Earnout Dispute Notice”) to Parent within thirty (30) days after receiving the Proposed Earnout Calculations, the Proposed Earnout Calculations shall be deemed to set forth the final Earnout Payment, and shall be final and binding upon the Parties. Prior to the end of such thirty (30)-day period, the Stockholders’ Representative may accept the Proposed Earnout Calculations by delivering written notice to that effect to Parent, in which case the Proposed Earnout Calculations shall be deemed to set forth the final Earnout Payment and shall be final and binding upon the Parties when such notice is given. If the Stockholders’ Representative delivers an Earnout Dispute Notice to Parent within such thirty (30)-day period, Parent and the Stockholders’ Representative shall use good faith efforts to resolve the dispute during the thirty (30)-day period commencing on the date Parent receives the Earnout Dispute Notice from the Stockholders’ Representative. Any Earnout Dispute Notice shall include the Stockholders’ Representative’s alternative calculations agreement with respect to each component all of the Proposed Earnout Calculations, along with the basis for and amount of each disputed item, together with supporting documentation. If the Stockholders’ Representative and Parent do not agree upon a final resolution with respect to any disputed items within such thirty (30)-day period, then the remaining items in dispute shall be submitted promptly to the Accounting Firm. Any item not specifically submitted to the Accounting Firm for evaluation shall be deemed final and binding on the Parties (as matters set forth in the Proposed Earnout CalculationsStatement of Objections before expiration of the Resolution Period, then any amounts remaining in dispute (“Disputed Amounts”) shall be submitted for resolution to the Earnout Dispute Notice or office of the Independent Accountants who shall resolve the Disputed Amounts only and make any determination as otherwise resolved in writing by Parent and to the Stockholders’ Representative)New Store Holdback Settlement. The Accounting Firm Independent Accountants shall be requested to render make a determination of each disputed item as soon as practicable within forty-five 30 days (45or such other time as the parties hereto shall agree in writing) days after referral their engagement, and their resolution of the matter Disputed Amounts and their adjustments to the Accounting Firm, which determination must be in writing and must set forth, in reasonable detail, the basis therefor and must be based solely on (A) the definitions and other applicable provisions of this Agreement, (B) a single presentation (which presentations shall be limited to the remaining items in dispute set forth in the Proposed Earnout Calculations and the Earnout Dispute Notice) submitted by each of Parent and the Stockholders’ Representative to the Accounting Firm within fifteen (15) days after the engagement thereof (which the Accounting Firm shall forward to Parent or the Stockholders’ Representative, as applicable), (C) one (1) written response to the Stockholders’ Representative’s initial presentation, which response may be submitted to the Accounting Firm by Parent within five (5) Business Days after receipt of the Stockholders’ Representative’s initial presentation (which the Accounting Firm shall forward to the Stockholders’ Representative), and (D) one (1) written response to Parent’s initial presentation, which response may be submitted to the Accounting Firm by the Stockholders’ Representative within five (5) Business Days after receipt of Parent’s initial presentation (which the Accounting Firm shall forward to Parent), and not on independent review, which such determination New Store Holdback Certificate shall be conclusive and binding on each Party. Ex parte communications upon the parties hereto and the New Store Holdback Settlement as determined hereby shall be paid by the Accounting Firm with Parent or Stockholders’ Representative regarding substantive matters appropriate party in connection herewith the manner provided in Section 2.07(a). The Independent Accountants shall only decide the Disputed Amounts by the parties, and their decision for each Disputed Amount must be within the range of values assigned to each such item in the New Store Holdback Certificate and the Statement of Objections, respectively. The fees and expenses of the Independent Accountants shall be prohibited. The terms of appointment and engagement of paid by Sellers, on the Accounting Firm shall be as reasonably agreed upon between the Stockholders’ Representative and Parentone hand, and any associated engagement fees shall be initially borne 50% Buyer, on the other hand, based upon the percentage that the amount actually contested but not awarded to Sellers or Buyer, respectively, bears to the aggregate amount actually contested by the Stockholders’ Representative (solely Seller Representative, on behalf of Sellers, and Buyer. For the Company Stockholdersavoidance of doubt, the fees and disbursements of each party’s accountants and other Representatives (other than the Independent Accountants) and 50% by Parent; provided, however, that such fees shall ultimately be borne by Parent and the Stockholders’ Representative (solely on behalf of the Company Stockholders) in the same proportion as the aggregate amount of the disputed items that is unsuccessfully disputed by each such Party (as determined by the Accounting Firm) bears to the total amount of the disputed items submitted to the Accounting Firm. Except as provided in the preceding sentence, all other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Accounting Firm New Store Holdback Settlement shall be borne by the Party incurring such cost and expense. The Accounting Firm shall resolve each disputed item by choosing a value not in excess of, nor less than, the greatest or lowest value, respectively, set forth in the presentations (and, if applicable, the responses) delivered to the Accounting Firm pursuant to this accordance with Section 5. The Proposed Earnout Calculations shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section 5 and, as so revised, such Proposed Earnout Calculations shall be deemed to set forth the final Earnout Payment, for all purposes hereunder and shall be final and binding upon the Parties10.01.

DISPUTE MECHANISM. If (i) Within 10 days following the Stockholders’ Representative does not deliver Purchaser’s delivery to the Member of a Net Revenue Statement with respect to a Quarterly Earnout Period, the Member will give the Purchaser a written notice stating either (i) the Member’s acceptance, without objection, of any dispute the Net Revenue Statement (an a “Earnout Dispute Net Revenue Acceptance Notice”) or (ii) the Member’s objections to Parent the Net Revenue Statement (a “Net Revenue Objection Notice”). If the Member gives the Purchaser a Net Revenue Acceptance Notice or does not give the Purchaser a Net Revenue Objection Notice within thirty such 10-day period, then such Net Revenue Statement will be conclusive and binding upon the Parties and the Net Revenue of the Companies set forth on such Net Revenue Statement will constitute the Final Net Revenue of the Companies for such Quarterly Earnout Period. (30ii) In the event that the Member delivers a Net Revenue Objection Notice to the Purchaser and the Purchaser and the Member fail to resolve all of the issues set forth in the Net Revenue Objection Notice within 10 days after receiving the Proposed Purchaser receives the Net Revenue Objection Notice (the “Net Revenue Agreement Period”), (A) the Member and the Purchaser will retain the Independent Auditors to make the determination of the Final Net Revenue of the Companies for such Quarterly Earnout CalculationsPeriod in accordance with the terms of this Agreement within the 15-day period immediately following the Net Revenue Agreement Period, and (B) the Purchaser and the Member Representative each will provide the Independent Auditors with their respective determinations of the Net Revenue of the Companies for such Quarterly Earnout Period. The Independent Auditors will consider only those items and amounts in the Purchaser’s and the Member’s respective determinations of the Net Revenue of the Companies that are identified as being items and amounts to which the Purchaser and the Member have been unable to agree. In resolving any such disputed item or amount, the Proposed Independent Auditors may not assign a value to any item or amount that is higher than the highest value for such item or amount claimed by either Party or lower than the lowest value for such item or amount claimed by either Party. The Independent Auditors’ determination of the Net Revenue of the Companies will be based on the definition of Net Revenue of the Companies contained in this Agreement. Assuming compliance with the immediately preceding sentence, the determination of the Final Net Revenue of the Companies for such Quarterly Earnout Calculations shall Period by the Independent Auditors will be deemed to set forth the final Earnout Payment, and shall be final conclusive and binding upon the Parties. Prior to The fees, costs and expenses of the end Independent Auditor will be paid (x) by the Member if the items covered thereby are resolved in favor of such thirty the Purchaser or (30)-day period, y) by the Stockholders’ Representative may accept Purchaser if the Proposed Earnout Calculations by delivering written notice to that effect to Parent, items covered thereby are resolved in which case favor of the Proposed Earnout Calculations shall be deemed to set forth the final Earnout Payment and shall be final and binding upon the Parties when such notice is givenMember. If the Stockholders’ Representative delivers an Earnout Dispute Notice items referred to Parent within therein are resolved in part in favor of the Member and in part in favor of the Purchaser, such thirty (30)-day periodfees, Parent costs and expenses will be allocated between the Member and the Stockholders’ Representative shall use good faith efforts to resolve the dispute during the thirty (30)-day period commencing on the date Parent receives the Earnout Dispute Notice from the Stockholders’ Representative. Any Earnout Dispute Notice shall include the Stockholders’ Representative’s alternative calculations with respect to each component of the Proposed Earnout Calculations, along with the basis for and amount of each disputed item, together with supporting documentation. If the Stockholders’ Representative and Parent do not agree upon a final resolution with respect to any disputed items within such thirty (30)-day period, then the remaining items Purchaser in dispute shall be submitted promptly to the Accounting Firm. Any item not specifically submitted to the Accounting Firm for evaluation shall be deemed final and binding on the Parties (as set forth in the Proposed Earnout Calculations, the Earnout Dispute Notice or as otherwise resolved in writing by Parent and the Stockholders’ Representative). The Accounting Firm shall be requested to render a determination of each disputed item within forty-five (45) days after referral of the matter to the Accounting Firm, which determination must be in writing and must set forth, in reasonable detail, the basis therefor and must be based solely on (A) the definitions and other applicable provisions of this Agreement, (B) a single presentation (which presentations shall be limited to the remaining items in dispute set forth in the Proposed Earnout Calculations and the Earnout Dispute Notice) submitted by each of Parent and the Stockholders’ Representative to the Accounting Firm within fifteen (15) days after the engagement thereof (which the Accounting Firm shall forward to Parent or the Stockholders’ Representative, as applicable), (C) one (1) written response to the Stockholders’ Representative’s initial presentation, which response may be submitted to the Accounting Firm by Parent within five (5) Business Days after receipt of the Stockholders’ Representative’s initial presentation (which the Accounting Firm shall forward to the Stockholders’ Representative), and (D) one (1) written response to Parent’s initial presentation, which response may be submitted to the Accounting Firm by the Stockholders’ Representative within five (5) Business Days after receipt of Parent’s initial presentation (which the Accounting Firm shall forward to Parent), and not on independent review, which such determination shall be conclusive and binding on each Party. Ex parte communications by the Accounting Firm with Parent or Stockholders’ Representative regarding substantive matters in connection herewith shall be prohibited. The terms of appointment and engagement of the Accounting Firm shall be as reasonably agreed upon between the Stockholders’ Representative and Parent, and any associated engagement fees shall be initially borne 50% by the Stockholders’ Representative (solely on behalf of the Company Stockholders) and 50% by Parent; provided, however, that such fees shall ultimately be borne by Parent and the Stockholders’ Representative (solely on behalf of the Company Stockholders) in the same inverse proportion as the aggregate amount of Member and the disputed items that is unsuccessfully disputed Purchaser may prevail on matters resolved by each such Party (as the Independent Auditor, which proportionate allocations will be determined by the Accounting Firm) bears to the total amount of the disputed items submitted to the Accounting Firm. Except as provided in the preceding sentence, all other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the Party incurring such cost and expense. The Accounting Firm shall resolve each disputed item by choosing a value not in excess of, nor less than, the greatest or lowest value, respectively, set forth in the presentations (and, if applicable, the responses) delivered to the Accounting Firm pursuant to this Section 5. The Proposed Earnout Calculations shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section 5 and, as so revised, such Proposed Earnout Calculations shall be deemed to set forth the final Earnout Payment, for all purposes hereunder and shall be final and binding upon the PartiesIndependent Auditors.

DISPUTE MECHANISM. (a) If Lender NLC delivers to NLC Holding a Dispute Notice on or prior to the last day of the Review Period, then Lender NLC and NLC Holding shall negotiate in good faith to resolve any disputes in such Dispute Notice. If Lender NLC and NLC Holding agree on all disputes in such Dispute Notice, then the Draft Closing Balance Sheet and the Draft Closing Adjusted Tangible Net Book Value, each as modified by such agreement of Lender NLC and NLC Holding, shall be and become the Final Closing Balance Sheet and the Final Closing Adjusted Tangible Net Book Value. If the Stockholders’ Representative does not deliver written notice parties are unable to resolve all disputed items in such Dispute Notice within 30 calendar days after Lender NLC’s delivery of any dispute (an “Earnout such Dispute Notice, NLC Holding and Lender NLC shall, within 15 calendar days after Lender NLC’s delivery of such Dispute Notice, jointly retain an independent valuation firm reasonably agreed to by NLC Holding and Lender NLC (the “Independent Arbiter”), to resolve the issues set forth in the Dispute Notice. The Independent Arbiter shall conduct its review of such issues, any related work papers of the Borrower’s accountants and any supporting documentation and hear such presentations by Lender NLC and NLC Holding as the Independent Arbiter deems necessary. (b) NLC Holding and Lender NLC shall use their respective reasonable best efforts to retain the Independent Arbiter as promptly as practicable following delivery of the Dispute Notice to NLC Holding and to cooperate with one another and the Independent Arbiter to resolve the issues set forth in the Dispute Notice no later than 60 calendar days following the date of the Independent Arbiter’s retention so that the Independent Arbiter may deliver to Lender NLC and Buyer a report (the “Adjustment Report”) setting forth the adjustments, if any, that should be made to Parent within thirty (30) days after receiving the Proposed Earnout Calculationsdisputed Draft Closing Balance Sheet or Lender NLC’s proposed calculation of the Draft Closing Adjusted Tangible Net Book Value. The fees, expenses and costs of the Independent Arbiter for the services described herein shall be allocated between Lender NLC and NLC Holding in proportion to the aggregate differences between their respective calculations of Adjusted Tangible Net Book Value as embodied in the Draft Closing Balance Sheet and NLC Holding’s certificate, as to NLC Holding, and the Dispute Notice, as to Lender NLC, and the Adjusted Tangible Net Book Value as finally determined by the Independent Arbiter in the Adjustment Report. NLC Holding, on the one hand, and Lender NLC, on the other, shall each reimburse the other to the extent the other has actually paid more of the fees, expenses and costs of the Independent Arbiter than the amount so required to be paid by such party pursuant to the preceding sentence. The Draft Closing Balance Sheet and the Draft Closing Adjusted Tangible Net Book Value, each as modified by the Adjustment Report, shall be and become the Final Closing Balance Sheet and the Final Closing Adjusted Tangible Net Book Value, respectively. The Adjustment Report, the Proposed Earnout Calculations shall be deemed to set forth Final Closing Balance Sheet and the final Earnout Payment, and Final Closing Adjusted Tangible Net Book Value shall be final and binding upon the Parties. Prior to NLC Holding and Lender NLC, and shall be deemed a final arbitration award that is enforceable in any court having jurisdiction. (c) Effective upon the end of such thirty the Review Period (30)-day periodif a timely Dispute Notice is not delivered), the Stockholders’ Representative may accept the Proposed Earnout Calculations by delivering written notice to that effect to Parent, in which case the Proposed Earnout Calculations shall be deemed to set forth the final Earnout Payment and shall be final and binding or upon the Parties when such notice is given. If the Stockholders’ Representative delivers an Earnout Dispute Notice to Parent within such thirty (30)-day period, Parent and the Stockholders’ Representative shall use good faith efforts to resolve the dispute during the thirty (30)-day period commencing on the date Parent receives the Earnout Dispute Notice from the Stockholders’ Representative. Any Earnout Dispute Notice shall include the Stockholders’ Representative’s alternative calculations with respect to each component resolution of the Proposed Earnout Calculations, along with the basis for and amount of each disputed item, together with supporting documentation. If the Stockholders’ Representative and Parent do not agree upon a final resolution with respect to any disputed items within such thirty (30)-day period, then the remaining items in dispute shall be submitted promptly to the Accounting Firm. Any item not specifically submitted to the Accounting Firm for evaluation shall be deemed final and binding on the Parties (as all matters set forth in the Proposed Earnout CalculationsDispute Notice by agreement of the parties hereto or by the issuance of the Adjustment Report (if a timely Dispute Notice is delivered) (the “Resolution Date”), the Earnout Dispute Notice or as otherwise resolved in writing by Parent Draft Closing Balance Sheet and the Stockholders’ Representative). The Accounting Firm amount of Draft Closing Adjusted Tangible Net Book Value shall be requested to render a determination of each disputed item within forty-five (45) days after referral of the matter adjusted to the Accounting Firm, which determination must be extent necessary to reflect the final resolution of any disputed items in writing and must set forth, in reasonable detailaccordance with the last sentence of Section 7.4(a), the basis therefor and must be based solely on (A) the definitions and other applicable provisions second sentence of this AgreementSection 7.4(b), (B) a single presentation (which presentations shall be limited to the remaining items in dispute set forth in the Proposed Earnout Calculations and the Earnout Dispute Notice) submitted by each of Parent and the Stockholders’ Representative to the Accounting Firm within fifteen (15) days after the engagement thereof (which the Accounting Firm shall forward to Parent or the Stockholders’ RepresentativeSection 7.4(c), as applicable), (C) one (1) written response to the Stockholders’ Representative’s initial presentation, which response may be submitted to the Accounting Firm by Parent within five (5) Business Days after receipt of the Stockholders’ Representative’s initial presentation (which the Accounting Firm shall forward to the Stockholders’ Representative), and (D) one (1) written response to Parent’s initial presentation, which response may be submitted to the Accounting Firm by the Stockholders’ Representative within five (5) Business Days after receipt of Parent’s initial presentation (which the Accounting Firm shall forward to Parent), and not on independent review, which such determination shall be conclusive and binding on each Party. Ex parte communications by the Accounting Firm with Parent or Stockholders’ Representative regarding substantive matters in connection herewith shall be prohibited. The terms of appointment and engagement of the Accounting Firm shall be as reasonably agreed upon between the Stockholders’ Representative and Parent, and any associated engagement fees shall be initially borne 50% by the Stockholders’ Representative (solely on behalf of the Company Stockholders) and 50% by Parent; provided, however, that such fees shall ultimately be borne by Parent and the Stockholders’ Representative (solely on behalf of the Company Stockholders) in the same proportion as the aggregate amount of the disputed items that is unsuccessfully disputed by each such Party (as determined by the Accounting Firm) bears to the total amount of the disputed items submitted to the Accounting Firm. Except as provided in the preceding sentence, all other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the Party incurring such cost and expense. The Accounting Firm shall resolve each disputed item by choosing a value not in excess of, nor less than, the greatest or lowest value, respectively, set forth in the presentations (and, if applicable, the responses) delivered to the Accounting Firm pursuant to this Section 5. The Proposed Earnout Calculations shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section 5 and, as so revised, such Proposed Earnout Calculations shall be deemed to set forth the final Earnout Payment, for all purposes hereunder and shall be final and binding upon the Parties.

DISPUTE MECHANISM. The Sellers shall have until thirty (30) days after the delivery of the Closing Date Balance Sheet to review the Closing Date Working Capital calculations and propose any adjustments thereto. All adjustments proposed by the Sellers shall be set out in detail in a written statement delivered to the Purchaser (the "Adjustment Statement") and shall be incorporated into the calculation of the Closing Date Working Capital, unless the Purchaser shall object in writing to such proposed adjustments (the proposed adjustment or adjustments to which the Purchaser objects are referred to herein as the "Contested Adjustments" and the Purchaser's objection notice is referred to herein as the "Contested Adjustment Notice") within thirty (30) days of delivery by the Sellers to the Purchaser of the Adjustment Statement. If the Stockholders’ Representative does Purchaser delivers a Contested Adjustment Notice to the Sellers, the Purchaser and the Sellers shall attempt in good faith to resolve their dispute regarding the Contested Adjustments, but if a final resolution thereof is not deliver written notice obtained within ten (10) days after the Purchaser delivers to the Sellers said Contested Adjustment Notice, either the Purchaser or the Sellers may retain for the benefit of any dispute all the parties hereto an accounting firm acceptable to both the Sellers and the Purchaser (an “Earnout Dispute Notice”the "Independent Accountant") to Parent resolve any remaining disputes concerning the Contested Adjustments. If the Independent Accountant is retained, then (i) the Sellers and the Purchaser shall each submit to the Independent Accountant in writing not later than thirty (30) days after the Independent Accountant is retained their respective positions with respect to the Contested Adjustments, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the Proposed Earnout Calculationspositions of both the Sellers and the Purchaser and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Proposed Earnout Calculations shall be deemed to set forth the final Earnout PaymentContested Adjustments, and which decision shall be final and binding upon the Parties. Prior to the end of such thirty (30)-day periodon, and nonappealable by, the Stockholders’ Representative may accept Sellers and the Proposed Earnout Calculations Purchaser. The fees and expenses of the Independent Accountant shall be paid by delivering written notice to that effect to Parent, the party whose estimate of the calculation in which case question is furthest from the Proposed Earnout Calculations Independent Accountant's estimate of the calculation in question. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final calculation in question (the "Settlement Amount Certificate"). The calculation of the Closing Date Working Capital shall be deemed to set forth include those adjustments accepted or made by the final Earnout Payment and shall be final and binding upon the Parties when such notice is given. If the Stockholders’ Representative delivers an Earnout Dispute Notice to Parent within such thirty (30)-day period, Parent and the Stockholders’ Representative shall use good faith efforts to resolve the dispute during the thirty (30)-day period commencing on the date Parent receives the Earnout Dispute Notice from the Stockholders’ Representative. Any Earnout Dispute Notice shall include the Stockholders’ Representative’s alternative calculations with respect to each component decision of the Proposed Earnout Calculations, along with Independent Accountant in resolving the basis for and amount of each disputed item, together with supporting documentation. If the Stockholders’ Representative and Parent do not agree upon a final resolution with respect to any disputed items within such thirty (30)-day period, then the remaining items in dispute shall be submitted promptly to the Accounting Firm. Any item not specifically submitted to the Accounting Firm for evaluation shall be deemed final and binding on the Parties (as set forth in the Proposed Earnout Calculations, the Earnout Dispute Notice or as otherwise resolved in writing by Parent and the Stockholders’ Representative). The Accounting Firm shall be requested to render a determination of each disputed item within forty-five (45) days after referral of the matter to the Accounting Firm, which determination must be in writing and must set forth, in reasonable detail, the basis therefor and must be based solely on (A) the definitions and other applicable provisions of this Agreement, (B) a single presentation (which presentations shall be limited to the remaining items in dispute set forth in the Proposed Earnout Calculations and the Earnout Dispute Notice) submitted by each of Parent and the Stockholders’ Representative to the Accounting Firm within fifteen (15) days after the engagement thereof (which the Accounting Firm shall forward to Parent or the Stockholders’ Representative, as applicable), (C) one (1) written response to the Stockholders’ Representative’s initial presentation, which response may be submitted to the Accounting Firm by Parent within five (5) Business Days after receipt of the Stockholders’ Representative’s initial presentation (which the Accounting Firm shall forward to the Stockholders’ Representative), and (D) one (1) written response to Parent’s initial presentation, which response may be submitted to the Accounting Firm by the Stockholders’ Representative within five (5) Business Days after receipt of Parent’s initial presentation (which the Accounting Firm shall forward to Parent), and not on independent review, which such determination shall be conclusive and binding on each Party. Ex parte communications by the Accounting Firm with Parent or Stockholders’ Representative regarding substantive matters in connection herewith shall be prohibited. The terms of appointment and engagement of the Accounting Firm shall be as reasonably agreed upon between the Stockholders’ Representative and Parent, and any associated engagement fees shall be initially borne 50% by the Stockholders’ Representative (solely on behalf of the Company Stockholders) and 50% by Parent; provided, however, that such fees shall ultimately be borne by Parent and the Stockholders’ Representative (solely on behalf of the Company Stockholders) in the same proportion as the aggregate amount of the disputed items that is unsuccessfully disputed by each such Party (as determined by the Accounting Firm) bears to the total amount of the disputed items submitted to the Accounting Firm. Except as provided in the preceding sentence, all other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the Party incurring such cost and expense. The Accounting Firm shall resolve each disputed item by choosing a value not in excess of, nor less than, the greatest or lowest value, respectively, set forth in the presentations (and, if applicable, the responses) delivered to the Accounting Firm pursuant to this Section 5. The Proposed Earnout Calculations shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section 5 and, as so revised, such Proposed Earnout Calculations shall be deemed to set forth the final Earnout Payment, for all purposes hereunder and shall be final and binding upon the PartiesContested Adjustments.