(THE "INDEPENDENT FIRM") TO REVIEW AND RESOLVE ALL PROPOSED ADJUSTMENTS ON WHICH
THE PARTIES ARE UNABLE TO AGREE.
THE INDEPENDENT FIRM SHALL ONLY REVIEW
DISPUTED PROPOSED ADJUSTMENTS AND SHALL NOT HAVE THE ABILITY TO REVIEW ANY ITEMS
NOT IN DISPUTE IN THE DISPUTE NOTICE OR OTHERWISE PREVIOUSLY AGREED BY THE
PARTIES.
NOT LATER THAN TEN (10) CALENDAR DAYS AFTER ENGAGING THE INDEPENDENT
FIRM (THE "NOTICE DATE"), BUYERS AND SELLERS EACH SHALL PRESENT OR CAUSE TO BE
PRESENTED TO THE INDEPENDENT FIRM IN WRITING, AND THE INDEPENDENT FIRM SHALL
REVIEW AND CONSIDER, THEIR RESPECTIVE POSITIONS WITH REGARD TO THE DISPUTED
PROPOSED ADJUSTMENTS TOGETHER WITH SUCH SUPPORTING DOCUMENTATION, CALCULATION OR
WRITTEN STATEMENTS AS EITHER PARTY MAY WISH TO PRESENT, INCLUDING DOCUMENTS
GENERATED BY THE PARTIES DURING THE PHYSICAL COUNTS CONTEMPLATED BY
PARAGRAPH (III) ABOVE.
SELLERS AND BUYERS SHALL USE THEIR RESPECTIVE
COMMERCIALLY REASONABLE EFFORTS TO CAUSE THE INDEPENDENT FIRM TO RENDER ITS
DECISIONS ON THE DISPUTED PROPOSED ADJUSTMENTS AS SOON AS IT IS REASONABLY
PRACTICABLE BUT NO LATER THAN THIRTY (30) CALENDAR DAYS AFTER THE NOTICE DATE,
INCLUDING BY PROMPTLY COMPLYING WITH ALL REASONABLE REQUESTS OF THE INDEPENDENT
FIRM FOR INFORMATION, PAPERS, BOOKS, RECORDS AND ACCESS TO RELEVANT PERSONNEL
AND OUTSIDE ACCOUNTANTS OF THE PARTIES.
IF A PROPOSED ADJUSTMENT TO THE
CONSIGNMENT INVENTORY AMOUNT IS IN DISPUTE, THE INDEPENDENT FIRM SHALL BASE ITS
DETERMINATION IN SUCH RESPECT ON THE REVIEW OF RELEVANT DOCUMENTS AND
DISCUSSIONS WITH CUSTOMERS HOLDING INVENTORY ON CONSIGNMENT AT THE COUNTED
SITES.
THE DETERMINATION OF THE INDEPENDENT FIRM REACHED IN ACCORDANCE WITH
THIS SECTION 1.2(B)(VI) SHALL BE BINDING ON THE PARTIES WITH RESPECT TO CHANGES,
IF ANY, TO BE MADE TO THE PROPOSED ADJUSTMENTS.
THE FINAL INVENTORY AMOUNT
DETERMINED PURSUANT TO SECTIONS 1.2(B)(V) AND 1.2(B)(VI) IS REFERRED TO HEREIN
AS THE "FINAL INVENTORY."
IF BUYERS SHALL HAVE SUBMITTED A DISPUTE NOTICE
PURSUANT TO SECTION 1.2(B)(V), THEN THE FINAL INVENTORY AMOUNT AS AGREED TO BY
THE PARTIES OR DETERMINED BY THE INDEPENDENT FIRM SHALL BE DEEMED THE FINAL
INVENTORY.
(VII)
IN THE EVENT BUYERS AND SELLERS SUBMIT ANY UNRESOLVED
DISAGREEMENTS TO THE INDEPENDENT FIRM FOR RESOLUTION AS PROVIDED HEREIN, BUYERS,
ON THE ONE HAND, AND
10
SELLERS, ON THE OTHER HAND, SHALL SHARE RESPONSIBILITY FOR THE FEES AND EXPENSES
OF THE INDEPENDENT FIRM AS FOLLOWS:
(X) IF THE INDEPENDENT FIRM RESOLVES ALL OF
THE UNRESOLVED DISAGREEMENTS IN FAVOR OF EITHER SELLERS OR BUYERS, THE OTHER
PARTY SHALL BE RESPONSIBLE FOR ALL OF THE FEES AND EXPENSES OF THE INDEPENDENT
FIRM; OR (Y) IF THE INDEPENDENT FIRM RESOLVES CERTAIN OF THE UNRESOLVED
DISAGREEMENTS IN FAVOR OF ONE PARTY AND THE REST OF THE UNRESOLVED DISAGREEMENTS
IN FAVOR OF THE OTHER PARTY, EACH PARTY SHALL BE RESPONSIBLE FOR A PROPORTIONATE
AMOUNT OF THE FEES AND EXPENSES OF THE INDEPENDENT FIRM BASED ON THE DOLLAR
AMOUNT OF THE UNRESOLVED DISAGREEMENTS RESOLVED AGAINST SUCH PARTY COMPARED TO
THE TOTAL DOLLAR AMOUNT OF ALL UNRESOLVED DISAGREEMENTS ORIGINALLY SUBMITTED TO
THE INDEPENDENT FIRM.
(VIII)
BASED ON THE FINAL INVENTORY, AN ADJUSTMENT PAYMENT SHALL BE
CALCULATED