Common use of Adjustment Dispute Resolution Clause in Contracts

Adjustment Dispute Resolution. To resolve any disputes in connection with the calculation of Adjustment Items that are not resolved pursuant to the procedures set forth in Section 3.04(a) above, the parties shall submit the dispute to Ernst & Young LLP, certified public accountants, or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine on the basis of the standards set forth herein and only with respect to the remaining differences so submitted, whether and to what extent, if any, an Adjustment Item at issue requires adjustment. The Independent Accounting Firm will base its determination only on evidence brought to it by the parties and shall not conduct an audit. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination shall be conclusive and binding upon the parties. With respect to each disputed Adjustment Item, the fees and disbursements of the Independent Accounting Firm associated with determining that Adjustment Item shall be allocated between Holdco and Seller in inverse proportion to the allocation of the disputed amount of such Adjustment Item made by the Independent Accounting Firm between Holdco and Seller. For example, if Seller contended that the amount of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000, then the amount in dispute with respect to such Adjustment Item would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested by the Independent Accounting Firm.

Adjustment Dispute Resolution. To resolve any disputes in connection with If Parent and Buyer are unable to reach agreement concerning the calculation of Adjustment Items that are not resolved Closing Date Schedule pursuant to Section 2.2(f)(ii), they shall submit such dispute to BDO USA LLP or, if such Person is not willing or is unable to accept such engagement, an independent accounting or financial consulting firm of recognized national standing mutually selected by Buyer and Parent (the procedures “Accounting Arbitrator”) (provided that if Buyer and Parent are unable to select an Accounting Arbitrator within ten days after receiving notice that such Person is not willing or is unable to accept such engagement, then each shall select a nationally recognized accounting or financial consulting firm, which firms will jointly select a third nationally recognized independent accounting or financial consulting firm which shall act as the Accounting Arbitrator), for resolution pursuant to this Section 2.2(g) and instruct the Accounting Arbitrator to review the disputed items or amounts for the purpose of final determination of the amounts set forth on the Closing Date Schedule provided, that the Accounting Arbitrator shall rely on the methodologies set forth in Section 3.04(a) abovethe Working Capital Schedule and GAAP, provided that in the event of a conflict between the Working Capital Schedule and GAAP, the parties Working Capital Schedule shall submit prevail. In making such determination and calculations, the dispute to Ernst & Young LLP, certified public accountants, Accounting Arbitrator shall consider only those items or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine amounts on the basis Closing Date Schedule as to which Parent and Buyer have disagreed in writing and submitted to the Accounting Arbitrator. Each of Buyer and Parent shall promptly provide their assertions regarding the standards set forth herein disputed amounts concerning the Closing Date Schedule pursuant to Section 2.2(f)(ii) in writing to the Accounting Arbitrator and only to each other. The Accounting Arbitrator shall be instructed to render its determination with respect to such disagreements as soon as reasonably practicable (which the remaining differences so submitted, whether parties hereto agree should not be later than 30 days after submission of the dispute) in a report setting forth the Accounting Arbitrator’s calculation of the disputed amounts (which calculation shall be within the range of dispute in respect of each disputed item between the amounts set forth on the Closing Date Schedule and to what extent, if any, an Adjustment Item at issue requires adjustmentthe notice of dispute delivered in accordance with Section 2.2(f)(ii)). The Independent Accounting Firm will Arbitrator shall base its determination only solely on evidence brought to it by the written submissions of the parties and shall not conduct an auditindependent investigation. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination Such report shall be conclusive final and binding upon the partiesSellers and Buyer and the resulting Closing Date Schedule and amounts set forth thereon shall be final for all purposes of this Agreement. With respect to Buyer and the Sellers shall each disputed Adjustment Item, the pay their own fees and disbursements expenses. The fees, costs and expenses of the Independent Accounting Firm associated with determining that Adjustment Item Arbitrator shall be allocated between Holdco to and Seller in borne by Buyer and the Sellers based on the inverse proportion of the percentage that the Accounting Arbitrator determination (before such allocation) bears to the allocation total amount of the disputed amount of such Adjustment Item made by total items in dispute as originally submitted to the Independent Accounting Firm between Holdco and SellerArbitrator. For example, if Seller contended that should the items in dispute total in amount to $1,000 and the Accounting Arbitrator awards $600 in favor of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000Sellers’ position, then 60% of the amount in dispute with respect to such Adjustment Item costs of its review would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% borne by Buyer and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested costs would be borne by the Independent Accounting FirmSellers.

Adjustment Dispute Resolution. To (a) If the Parties are unable to resolve any disputes in connection with disagreements regarding the calculation of Adjustment Items that are not resolved pursuant to the procedures set forth in relevant Purchase Price under Section 3.04(a2.5(b) abovewithin 30 Days of the relevant Closing Date, the parties they shall submit the dispute to Ernst & Young LLP, certified public accountants, or such other nationally recognized promptly thereafter retain an accounting firm of international recognition with expertise in the oil and gas industry which is independent public accountants that does of the Parties, is not serve as an the auditor of, or consultant to, Holdco, Seller of any Party or any of their respective Affiliates and is otherwise acceptable to Orca and Swala acting reasonably (the "Accounting Referee"). If the Parties are unable to agree on the selection of the Accounting Referee, either Party may request that the ICC International Centre for ADR, in accordance with the Rules of Appointment, appoint an "Independent expert to serve as the Accounting Firm") Referee, which selection shall be binding on the Parties. The Parties will direct the Accounting Referee to review this Agreement and the items or amounts to which the applicable Party took exception for the purpose of calculating the relevant Purchase Price (it being understood that in making such calculation, the Accounting Referee shall be functioning as may be jointly selected by Seller and Holdco, who shall, acting as experts an expert and not as arbitratorsan arbitrator). In making such calculation, determine on the basis Accounting Referee shall consider only those items or amounts in the relevant Adjustment Statement and any calculation of the standards set forth herein and only with respect to relevant Purchase Price that had been previously agreed by the remaining differences so submitted, whether and to what extent, if any, an Adjustment Item at issue requires adjustmentParties or that became binding upon the Parties. The Independent Accounting Firm will base its determination only on evidence brought Referee shall be instructed to it by the parties deliver to Orca and shall not conduct an audit. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller Swala, as promptly as practicable (but in any case, no later than 30 Days from the thirtieth date of engagement of the Accounting Referee), a report setting forth such calculation. Such report shall be final and binding upon Orca and Swala. The cost of such review and report shall be borne by Orca and Swala in their Percentage Interests. (30thb) day Orca and Swala shall, and shall direct and cause PAEM and its Subsidiaries to, cooperate and assist in the resolution of any exceptions to the relevant Adjustment Statement and the calculation and re-calculation of the relevant Purchase Price, and the conduct of the review referred to in this Section 2.6(b). (i) If (A) the relevant Purchase Price or any adjustments thereto as agreed by the Parties or that became binding on the Parties or as determined by the Accounting Referee pursuant to Section 2.6(a) exceeds (B) the Purchase Price set forth in the relevant Adjustment Statement, Swala shall pay to Orca the amount of such excess in the manner provided in Section 2.6(d). (ii) If (A) the Purchase Price set forth in the relevant Adjustment Statement exceeds (B) the relevant Purchase Price as agreed by the Parties or that became binding on the Parties or as determined by the Accounting Referee pursuant to Section 2.6(a), Orca shall pay to Swala the amount of such excess in the manner provided in Section 2.6(d). (d) Any payment to be made pursuant to this Section 2.6 shall be made within five Business Days after the submission to it applicable amount of such payment was agreed by the Disagreement Notice and/or Second Disagreement Notice and a statement of Parties, became binding upon the objections of Holdco Parties or Sellerwas determined by the Accounting Referee, as the case may be, thereto, and, in any caseby wire transfer by Swala or Orca, as soon as practicable after such submission. The Independent Accounting Firm's determination shall be conclusive and binding upon the parties. With respect case may be, of immediately available funds to each disputed Adjustment Item, the fees and disbursements account of the Independent Accounting Firm associated with determining that Adjustment Item shall applicable Party as may be allocated between Holdco and Seller designated in inverse proportion to the allocation of the disputed amount of writing by such Adjustment Item made by the Independent Accounting Firm between Holdco and Seller. For example, if Seller contended that the amount of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000, then the amount in dispute with respect to such Adjustment Item would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested by the Independent Accounting FirmParty.

Adjustment Dispute Resolution. To resolve any disputes in connection with If the Stockholder Representative and Parent are unable to reach agreement concerning the Closing Date Balance Sheet and Closing Working Capital pursuant to Section 2.6(e), they shall submit such dispute to Deloitte & Touche LLP or such other independent accounting expert as Parent and the Stockholder Representative may agree (the “Accounting Referee”) for resolution pursuant to this Section 2.6(f) and instruct the Accounting Referee to review the disputed items or amounts for the purpose of final determination of the Closing Date Balance Sheet and the calculation of Adjustment Items that are not resolved pursuant to the procedures set forth in Section 3.04(a) above, the parties shall submit the dispute to Ernst & Young LLP, certified public accountants, or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine on the basis of the standards set forth herein and only with respect to the remaining differences so submitted, whether and to what extent, if any, an Adjustment Item at issue requires adjustment. The Independent Accounting Firm will base its determination only on evidence brought to it by the parties and shall not conduct an audit. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or SellerClosing Working Capital, as the case may be. In making such determination and calculations, thereto, and, the Accounting Referee shall consider only those items or amounts in any case, the Closing Date Balance Sheet and/or Parent’s calculation of Closing Working Capital as soon to which the Stockholder Representative has disagreed in writing. Parent and the Stockholder Representative shall instruct the Accounting Referee to use its best efforts to deliver to the Stockholder Representative and Parent as promptly as practicable (but in no event later than thirty (30) days after such submission) a report setting forth the Accounting Referee’s calculation of the disputed amounts. The Independent Accounting Firm's determination Such report shall be conclusive final and binding upon the parties. With respect to each disputed Adjustment ItemStockholder Representative, the Stockholders, Parent and the Surviving Corporation and the resulting Closing Date Balance Sheet and calculation of Closing Working Capital shall be final for all purposes of this Agreement. Parent, on the one hand, and the Stockholder Representative on behalf of the Stockholders, on the other hand, shall each pay their own fees and disbursements expenses and one-half of the Independent costs and charges of the Accounting Firm associated with determining that Adjustment Item shall Referee’s review and report. The Stockholders’ share of these costs will be allocated between Holdco and Seller in inverse proportion deducted from the Escrow Amount, subject to the allocation of the disputed amount of such Adjustment Item made by the Independent Accounting Firm between Holdco and Seller. For example, if Seller contended that the amount of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000, then the amount limitations set forth in dispute with respect to such Adjustment Item would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested by the Independent Accounting FirmSection 9.5(b).

Adjustment Dispute Resolution. To resolve any disputes in connection with If Seller and Buyer are unable to reach agreement concerning the calculation of Adjustment Items that are not resolved Final Closing Statement pursuant to Section 2.03(c)(ii), they shall submit such dispute to the procedures Independent Accountant for resolution pursuant to this Section 2.03(d) and instruct the Independent Accountant to review the disputed items or amounts for the purpose of final determination of the amounts set forth on the Final Closing Statement, provided that the Independent Accountant shall rely solely on the definitions and provisions of this Agreement and the methodologies set forth in Section 3.04(a) abovethe Closing Working Capital Determination Standard. In making such determination and calculations, the parties Independent Accountant shall submit consider only those items or amounts on the Final Closing Statement as to which Xxxxxx has disagreed in writing. Each of Buyer and Seller shall promptly provide their assertions regarding the disputed amounts concerning the Final Closing Statement in writing to the Independent Accountant and to each other. The Independent Accountant shall be instructed to render its determination with respect to such disagreements as soon as reasonably practicable (which the Parties hereto agree should not be later than thirty (30) days after submission of the dispute) in a written report setting forth the Independent Accountant’s calculation of the disputed amounts (which calculation shall be within the range of dispute to Ernst & Young LLP, certified public accountants, or such other nationally recognized firm in respect of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any each disputed item between the amounts set forth on the Final Closing Statement and the notice of their respective Affiliates (an "dispute delivered in accordance with Section 2.03(c)(ii)). The Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shallAccountant, acting as experts an expert and not as arbitratorsan arbitrator, determine on the basis of the standards set forth herein and only with respect to the remaining differences so submitted, whether and to what extent, if any, an Adjustment Item at issue requires adjustment. The Independent Accounting Firm will shall base its determination only solely on evidence brought to it by the parties written submissions of the Parties and shall not conduct an auditindependent investigation. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it report of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination Accountant shall be conclusive final and binding upon Seller and Buyer, and the partiesresulting Final Closing Statement and amounts set forth thereon shall be final and non- appealable. With respect to Buyer, on the one hand, and Seller, on the other hand, shall each disputed Adjustment Item, the pay their own fees and disbursements expenses. The fees, costs and expenses of the Independent Accounting Firm associated with determining that Adjustment Item Accountant shall be allocated between Holdco to and borne by Xxxxx and Seller in based on the inverse proportion of the percentage that the Independent Accountant determination (before such allocation) bears to the allocation of the disputed total amount of such Adjustment Item made by all items in dispute as originally submitted to the Independent Accounting Firm between Holdco and SellerAccountant. For example, if Seller contended that should the items in dispute total in amount to one thousand dollars ($1,000) and the Independent Accountant awards six hundred dollars ($600) in favor of Seller’s position, sixty percent (60%) of the Prepayments Adjustment Item was $300,000 costs of its review would be borne by Xxxxx and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000, then forty percent (40%) of the amount costs would be borne by Seller. The procedure set forth in dispute this Section 2.03(d) for resolving disputes with respect to the Final Closing Statement shall be the sole and exclusive method for resolving any such Adjustment Item would be $100,000. Accordinglydisputes, if provided that this provision shall not prohibit any Party from instituting litigation to enforce the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested by the Independent Accounting FirmAccountant.

Adjustment Dispute Resolution. To resolve any disputes in connection with If the calculation Seller Representative and Buyer are unable to reach agreement concerning the Closing Date Schedule following the process under Section 2.2(d)(ii), they shall submit such dispute to an independent accounting firm of Adjustment Items that are not resolved recognized national standing, mutually selected by Xxxxx and the Seller Representative (the “Accounting Arbitrator”) for resolution pursuant to this Section 2.2(e) and instruct the procedures Accounting Arbitrator to review the disputed items or amounts for the purpose of final determination of the amounts set forth on the Closing Date Schedule; provided that the Accounting Arbitrator shall rely on definitions set forth in Section 3.04(a) abovethis Agreement, the methodologies set forth in the Working Capital Schedule and the Accounting Principles, as applicable; provided, further, that in the event of a conflict or inconsistency between the methodologies in the Working Capital Schedule and the Accounting Principles, the Accounting Principles shall govern with respect to such conflict or inconsistency. In making such determination and calculations, the Accounting Arbitrator shall act as an expert and not an arbitrator and shall consider and opine on only those items or amounts on the Closing Date Schedule as to which the Seller Representative has timely disagreed in writing pursuant to Section 2.2(d)(ii). Each of Buyer and the Seller Representative shall promptly provide their assertions regarding the disputed amounts concerning the Closing Date Schedule pursuant to Section 2.2(d)(ii) in writing to the Accounting Arbitrator and to each other. The Accounting Arbitrator shall be instructed to render its determination with respect to such disagreements as soon as reasonably practicable (which the parties shall submit hereto agree should not be later than thirty (30) days after submission of the dispute to Ernst & Young LLP, certified public accountants, or such other nationally recognized firm the Accounting Arbitrator) in a report setting forth the Accounting Arbitrator’s calculation of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any the disputed amounts (which calculation shall be within the range of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine dispute in respect of each disputed item between the amounts set forth on the basis Closing Date Schedule and the notice of dispute timely delivered by the standards set forth herein and only Seller Representative in accordance with respect to the remaining differences so submitted, whether and to what extent, if any, an Adjustment Item at issue requires adjustmentSection 2.2(d)(ii)). The Independent Accounting Firm will Arbitrator shall base its determination only solely on evidence brought to it by the written submissions of the parties and the terms of this Agreement and shall not conduct an auditindependent investigation. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination Such report shall be conclusive final and binding upon the parties. With respect to each disputed Adjustment ItemSeller Representative, the Sellers and Xxxxx and the resulting Closing Date Schedule and amounts set forth thereon shall be final for all purposes of this Agreement, absent fraud or manifest error. Buyer, on the one hand, and the Seller Representative, on behalf of the Sellers, on the other hand, shall each pay their own fees and disbursements expenses. The fees, costs and expenses of the Independent Accounting Firm associated with determining that Adjustment Item Arbitrator shall be allocated between Holdco to and borne by Xxxxx and the Seller in Representative, solely at the expense of the Sellers, based on the inverse proportion of the percentage that the Accounting Arbitrator’s determination (before such allocation) bears to the allocation total amount of the disputed amount of such Adjustment Item made by total items in dispute as originally submitted to the Independent Accounting Firm between Holdco and SellerArbitrator. For example, if Seller contended that should the items in dispute total in amount to ten thousand dollars ($10,000) and the Accounting Arbitrator awards six thousand dollars ($6,000) in favor of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000Seller Representative’s position, then sixty percent (60%) of the amount in dispute with respect to such Adjustment Item costs of its review would be $100,000. Accordinglyborne by Xxxxx and forty percent (40%) of such costs would be borne by the Seller Representative, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% and Seller would pay 40% on behalf of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested by the Independent Accounting FirmSellers.

Adjustment Dispute Resolution. To resolve any disputes in connection with If the calculation of Adjustment Items that Sellers and Buyer are not resolved unable to reach agreement concerning the Closing Date Schedule pursuant to Section 2.3(d)(ii), they shall submit such dispute to Deloitte Touche Tohmatsu Limited or, if such Person is not willing or is unable to accept such engagement, an independent accounting or financial consulting firm of recognized national standing mutually selected by Buyer and the procedures Sellers (the “Accounting Arbitrator”) (provided that if Buyer and the Sellers are unable to select an Accounting Arbitrator within ten days after receiving notice that Deloitte Touche Tohmatsu Limited is not willing or is unable to accept such engagement, then each shall select a nationally recognized accounting or financial consulting firm, which firms will jointly select a third nationally recognized independent accounting or financial consulting firm which shall act as the Accounting Arbitrator), for resolution pursuant to this Section 2.3(e) and instruct the Accounting Arbitrator to review the disputed items or amounts for the purpose of final determination of the amounts set forth on the Closing Date Schedule provided, the Accounting Arbitrator shall rely on the methodologies set forth in Section 3.04(a) abovethe Working Capital Schedule and GAAP, provided that in the event of a conflict between the Working Capital Schedule and GAAP, the parties Working Capital Schedule shall submit prevail. In making such determination and calculations, the dispute to Ernst & Young LLP, certified public accountants, Accounting Arbitrator shall consider only those items or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine amounts on the basis Closing Date Schedule as to which the Sellers and Buyer have disagreed in writing and submitted to the Accounting Arbitrator. Each of Buyer and the standards set forth herein Sellers shall promptly provide their assertions regarding the disputed amounts concerning the Closing Date Schedule pursuant to Section 2.3(d)(ii) in writing to the Accounting Arbitrator and only to each other. The Accounting Arbitrator shall be instructed to render its determination with respect to such disagreements as soon as reasonably practicable (which the remaining differences so submitted, whether parties hereto agree should not be later than 30 days after submission of the dispute) in a report setting forth the Accounting Arbitrator’s calculation of the disputed amounts (which calculation shall be within the range of dispute in respect of each disputed item between the amounts set forth on the Closing Date Schedule and to what extent, if any, an Adjustment Item at issue requires adjustmentthe notice of dispute delivered in accordance with Section 2.3(d)(ii)). The Independent Accounting Firm will Arbitrator shall base its determination only solely on evidence brought to it by the written submissions of the parties and shall not conduct an auditindependent investigation. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination Such report shall be conclusive final and binding upon the partiesSellers and Buyer and the resulting Closing Date Schedule and amounts set forth thereon shall be final for all purposes of this Agreement. With respect to Buyer and the Sellers shall each disputed Adjustment Item, the pay their own fees and disbursements expenses. The fees, costs and expenses of the Independent Accounting Firm associated with determining that Adjustment Item Arbitrator shall be allocated between Holdco to and Seller in borne by Buyer and the Sellers based on the inverse proportion of the percentage that the Accounting Arbitrator determination (before such allocation) bears to the allocation total amount of the disputed amount of such Adjustment Item made by total items in dispute as originally submitted to the Independent Accounting Firm between Holdco and SellerArbitrator. For example, if Seller contended that should the items in dispute total in amount to $1,000 and the Accounting Arbitrator awards $600 in favor of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000Sellers’ position, then 60% of the amount in dispute with respect to such Adjustment Item costs of its review would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% borne by Buyer and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested costs would be borne by the Independent Accounting FirmSellers.

Adjustment Dispute Resolution. To resolve any disputes in connection with If Xxxx and Buyer are unable to reach agreement concerning the calculation of Adjustment Items that are not resolved Closing Date Schedule pursuant to Section 2.2(d)(ii), they shall submit such dispute to an independent accounting or financial consulting firm of recognized national standing mutually selected by Buyer and Xxxx (the procedures “Accounting Arbitrator”) for resolution pursuant to this Section 2.2(e) and instruct the Accounting Arbitrator to review the disputed items or amounts for the purpose of final determination of the amounts set forth on the Closing Date Schedule, provided that the Accounting Arbitrator shall rely on the methodologies set forth in Section 3.04(a) abovethe Accounting Principles. In making such determination and calculations, the parties Accounting Arbitrator shall submit the dispute to Ernst & Young LLP, certified public accountants, consider only those items or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine amounts on the basis Closing Date Schedule as to which Xxxx has disagreed in writing. Each of Buyer and Xxxx shall promptly provide their assertions regarding the standards set forth herein disputed amounts concerning the Closing Date Schedule pursuant to Section 2.2(d)(ii) in writing to the Accounting Arbitrator and only to each other. Each of Buyer and Xxxx agrees to execute, if requested by the Accounting Arbitrator, an engagement letter with reasonable terms mutually agreed upon by Buyer and Xxxx. The Accounting Arbitrator shall be instructed to render its determination with respect to such disagreements as soon as reasonably practicable (which the remaining differences so submitted, whether parties hereto agree should not be later than 30 days after submission of the dispute) in a report setting forth the Accounting Arbitrator’s calculation of the disputed amounts (which calculation shall be within the range of dispute in respect of each disputed item between the amounts set forth on the Closing Date Schedule and to what extent, if any, an Adjustment Item at issue requires adjustmentthe notice of dispute delivered in accordance with Section 2.2(d)(ii)). The Independent Accounting Firm will Arbitrator shall base its determination only solely on evidence brought to it by the written submissions and supporting materials of the parties and shall not conduct an auditindependent audit or investigation. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or SellerAbsent manifest error, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination report shall be conclusive final and binding upon the partiesParties, and the resulting Closing Date Schedule and amounts set forth thereon shall be final for all purposes of this Agreement. With respect to Buyer, on the one hand, and Xxxx, on the other hand, shall each disputed Adjustment Item, the pay their own fees and disbursements expenses. The fees, costs and expenses of the Independent Accounting Firm associated with determining that Adjustment Item Arbitrator shall be allocated between Holdco to and Seller in borne by Buyer, on the one hand, and Sellers or Xxxx, on the other hand, based on the inverse proportion of the percentage that the Accounting Arbitrator determination (before such allocation) bears to the allocation total amount of the disputed amount of such Adjustment Item made by total items in dispute as originally submitted to the Independent Accounting Firm between Holdco and SellerArbitrator. For example, if Seller contended that should the items in dispute total in amount to $1,000 and the Accounting Arbitrator awards $600 in favor of Xxxx’x position, 60% of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000, then the amount in dispute with respect to such Adjustment Item costs of its review would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% borne by Buyer and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested costs would be borne by the Independent Accounting FirmSellers or Xxxx.

Adjustment Dispute Resolution. To resolve any disputes in connection with If the calculation of Adjustment Items that Seller Representative and Buyer are not resolved unable to reach agreement concerning the Closing Date Schedule pursuant to Section 2.2(e)(ii), they shall submit such dispute US-DOCS\102662145.20 to RSM US LLP, (“RSM”) or, if RSM is not willing or is unable to accept such engagement, an independent accounting or financial consulting firm of recognized national standing mutually selected by Buyer and the procedures Seller Representative (the “Accounting Arbitrator”) (provided that if Buyer and the Seller Representative are unable to select an Accounting Arbitrator within ten (10) days after receiving notice that RSM is not willing or is unable to accept such engagement, then each shall select a nationally recognized accounting or financial consulting firm, which firms will jointly select a third nationally recognized independent accounting or financial consulting firm which shall act as the Accounting Arbitrator), for resolution pursuant to this Section 2.2(f) and instruct the Accounting Arbitrator to review the disputed items or amounts for the purpose of final determination of the amounts set forth on the Closing Date Schedule provided, that the Accounting Arbitrator shall rely on the methodologies set forth in Section 3.04(a) abovethe Net Working Capital Schedule, the parties Indebtedness Schedule and GAAP (provided that in the event of a conflict between the Net Working Capital Schedule and GAAP, the Net Working Capital Schedule shall submit prevail). In making such determination and calculations, the dispute to Ernst & Young LLP, certified public accountants, Accounting Arbitrator shall consider only those items or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine amounts on the basis Closing Date Schedule as to which the Seller Representative has disagreed with in writing. Each of Buyer and the standards set forth herein Seller Representative shall promptly provide their assertions regarding the disputed amounts concerning the Closing Date Schedule pursuant to Section 2.2(e)(ii) in writing to the Accounting Arbitrator and only to each other. The Accounting Arbitrator shall be instructed to render its determination with respect to such disagreements as soon as reasonably practicable (which the remaining differences so submitted, whether parties hereto agree should not be later than thirty (30) days after submission of the dispute) and to what extent, if any, an Adjustment Item at issue requires adjustmenta report setting forth the Accounting Arbitrator’s calculation of the disputed amounts (which calculation shall be within the range of dispute in respect of each disputed item between the amounts set forth on the Closing Date Schedule and the notice of dispute delivered in accordance with Section 2.2(e)(ii)). The Independent Accounting Firm will Arbitrator shall base its determination only solely on evidence brought to it by the written submissions of the parties and shall not conduct an auditindependent investigation. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination Such report shall be conclusive final and binding upon the partiesSeller Representative, Sellers and Buyer and the resulting Closing Date Schedule and amounts set forth thereon shall be final for all purposes of this Agreement. With respect to Buyer, on the one hand, and the Seller Representative on behalf of Sellers, on the other hand, shall each disputed Adjustment Item, the pay their own fees and disbursements expenses. The fees, costs and expenses of the Independent Accounting Firm associated with determining that Adjustment Item Arbitrator shall be allocated between Holdco to and borne by Buyer and the Seller in Representative, on behalf of Sellers, based on the inverse proportion of the percentage that the Accounting Arbitrator determination (before such allocation) bears to the allocation total amount of the disputed amount of such Adjustment Item made by total items in dispute as originally submitted to the Independent Accounting Firm between Holdco and SellerArbitrator. For example, if Seller contended that should the items in dispute total in amount to one thousand dollars ($1,000) and the Accounting Arbitrator awards six hundred dollars ($600) in favor of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000Seller Representative’s position, then sixty percent (60%) of the amount in dispute with respect to such Adjustment Item costs of its review would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% borne by Buyer and Seller would pay forty percent (40% %) of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested costs would be borne by the Independent Accounting FirmSeller Representative, on behalf of Sellers.

Adjustment Dispute Resolution. To resolve any disputes in connection with If the calculation of Adjustment Items that Holder Representative and Buyer are not resolved unable to reach agreement concerning the Closing Date Balance Sheet, Closing Working Capital and/or Closing Indebtedness pursuant to the procedures set forth in Section 3.04(a) above1.6(e), the parties they shall submit the such dispute to Ernst & Young LLPDeloitte LLP or, certified public accountantsif not available, or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly accounting expert selected by Seller Buyer and Holdco, who shall, acting as experts reasonably acceptable to the Holder Representative (the “Accounting Referee”) for resolution pursuant to this Section 1.6(f) and not as arbitrators, determine on instruct the basis Accounting Referee to review the disputed items or amounts for the purpose of final determination of the standards set forth herein and only with respect to the remaining differences so submittedClosing Date Balance Sheet, whether and to what extent, if any, an Adjustment Item at issue requires adjustment. The Independent Accounting Firm will base its determination only on evidence brought to it by the parties and shall not conduct an audit. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice Closing Working Capital and/or Second Disagreement Notice and a statement of the objections of Holdco or SellerClosing Indebtedness, as the case may be. In making such determination and calculations, thereto, and, the Accounting Referee shall consider only those items or amounts in any case, the Closing Date Balance Sheet and/or Buyer’s calculation of Closing Working Capital and/or Closing Indebtedness as soon to which the Holder Representative has disagreed in writing. Buyer and the Holder Representative shall instruct the Accounting Referee to use its commercially reasonable efforts to deliver to the Holder Representative and Buyer as promptly as practicable (but in no event later than thirty (30) days after such submission) a report setting forth the Accounting Referee’s calculation of the disputed amounts. The Independent Accounting Firm's determination Such report shall be conclusive final and binding upon the parties. With respect to each disputed Adjustment ItemHolder Representative, the Holders, the Company Warrant Holders, the holders of Company Options, Buyer and the Surviving Corporation and the resulting Closing Date Balance Sheet and calculation of Closing Working Capital and Closing Indebtedness shall be final for all purposes of this Agreement. The fees and disbursements expenses of the Independent Accounting Firm associated with determining that Adjustment Item Referee shall be allocated paid 50% by the Holders and 50% by Buyer; provided, that if the difference between Holdco and Seller in inverse proportion the Buyer Adjustment Amount or Holder Adjustment Amount, as applicable, that would have resulted from the use of the proposed calculations of one of the parties hereto (the “Erroneous Party”) compared to the allocation final determination of the disputed amount of such Accounting Referee is more than twice as great as the difference between the Buyer Adjustment Item made by Amount or Holder Adjustment Amount, as applicable, that would have resulted from the Independent Accounting Firm between Holdco and Seller. For example, if Seller contended that the amount use of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting other party’s proposed calculations compared to such amount contending that is was only $200,000the final determination of the Accounting Referee, then the amount in dispute with respect to such Adjustment Item would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would Erroneous Party shall pay 60% and Seller would pay 40% all of the fees and disbursements associated with the Independent Accounting Firm's determination expenses of the Prepayment amountAccounting Referee. For purposes of Buyer and the foregoing calculation, the parties Holder Representative shall instruct the Independent Accounting Firm Escrow Agent to provide a breakdown withdraw from the Indemnification Escrow Amount the portion of its overall such fees and disbursements between each Adjustment Item expenses for which is submitted the Holders are responsible and Buyer and the Holder Representative shall jointly instruct the Escrow Agent in writing to transfer such amount from the Independent Accounting Firm for resolution. Holdco and Seller shall make available Indemnification Escrow Amount to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested by the Independent Accounting FirmBuyer.

Adjustment Dispute Resolution. To (a) If prior to the expiration of the Sellers' Review Period, the Sellers deliver an Adjustment Dispute Notice to the Buyer, then for a period of twenty (20) days following the Buyer's receipt of the Adjustment Dispute Notice (the "Negotiation Period"), the Buyer and the Seller shall negotiate in good faith to resolve any disputes the dispute. If the dispute is not finally resolved by the parties within the Negotiation Period, then the dispute shall be referred to an accounting firm mutually agreed upon by the parties or, if the parties cannot agree, to the New York office of Price Waterhouse & Co. (the "Arbitrator") for resolution in connection accordance with the calculation of Adjustment Items terms hereof (the "Arbitration"), and in any event as soon as practicable. In the event that are the parties cannot resolved pursuant agree on an accounting firm and Price Waterhouse & Co. is then unwilling or unable to serve as the procedures set forth in Section 3.04(a) aboveArbitrator, the parties hereto shall, within fifteen (15) days following the parties' receipt of notice from Price Waterhouse & Co. thereof, select by mutual written agreement another nationally recognized certified public accounting firm to serve as the Arbitrator. (b) The Arbitrator shall submit hold a hearing within sixty (60) days of the submission of the dispute for arbitration (the "Hearing") and shall render a decision within thirty (30) days of the conclusion of such Hearing. Any decision made by the Arbitrator within the scope of its authority shall be final, binding and non-appealable. The Arbitrator's decision regarding its final resolution of the dispute (the "Arbitrator's Decision") shall be in writing, shall set forth the calculations made in reaching its decision, shall describe the manner in which such calculations were made, and shall include a representation that the manner so used was in accordance with the specific terms of this Agreement. The Arbitrator's Decision shall specifically set forth the Arbitrator's calculation of the Purchase Price Adjustment. (c) The Arbitrator shall only be authorized on any one issue in dispute either (i) to Ernst & Young LLP, certified public accountantsdecide in favor of and select either the position of the Buyer or the Seller, or (ii) to decide upon a compromise position between the positions of the Buyer and the Seller. The Arbitrator shall base its decision solely upon the presentations of the parties at the Hearing and any materials made available during any aspect of the Hearing and not upon independent review. (d) Any such other nationally recognized firm Arbitration shall take place in New York, New York, unless the parties shall mutually agree on another location. The Arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. Section 1 through 16, and judgment upon the award of independent public accountants that does not serve as the Arbitrator may be entered by any court having jurisdiction thereof. (e) The fees and expenses of the Arbitrator shall be borne fifty percent (50%) by the Sellers and fifty percent (50%) by the Buyer. Notwithstanding the foregoing, the parties hereto shall bear their own costs and expenses related to any such Arbitration. (f) Upon the request of the Arbitrator, each party hereto agrees to enter into an auditor ofarbitration agreement providing reasonable protection to the Arbitrator, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") in such form as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine on the basis of the standards set forth herein and only with respect mutually acceptable to the remaining differences so submitted, whether Arbitrator and to what extent, if any, an Adjustment Item at issue requires adjustment. The Independent Accounting Firm will base its determination only on evidence brought to it by the parties and shall not conduct an audit. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination shall be conclusive and binding upon the parties. With respect to each disputed Adjustment Item, the fees and disbursements of the Independent Accounting Firm associated with determining that Adjustment Item shall be allocated between Holdco and Seller in inverse proportion to the allocation of the disputed amount of such Adjustment Item made by the Independent Accounting Firm between Holdco and Seller. For example, if Seller contended that the amount of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000, then the amount in dispute with respect to such Adjustment Item would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested by the Independent Accounting Firmhereto.

Adjustment Dispute Resolution. To resolve any disputes in connection with If the calculation of Stockholders’ Committee and Acquiror are unable to reach agreement concerning the Closing Adjustment Items that are not resolved Amount pursuant to Section 1.7(d), they shall submit such dispute to a nationally recognized independent accounting expert, mutually acceptable to Acquiror and the procedures set forth in Section 3.04(a) aboveStockholders’ Committee, which is not the auditor of Acquiror, the parties shall submit the dispute to Ernst & Young LLP, certified public accountants, or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller Target or any of their respective Affiliates (an "Independent the “Accounting Firm"Referee”) as may be jointly selected by Seller for resolution pursuant to this Section 1.8 and Holdco, who shall, acting as experts and not as arbitrators, determine on instruct the basis Accounting Referee to review the disputed items or amounts for the purpose of final determination of the standards set forth herein Closing Adjustment Amount. In making such determination and calculations, the Accounting Referee shall consider only with respect those items or amounts in the Closing Adjustment Amount or in the Acquiror Determination as to which Acquiror and the Stockholders’ Committee have disagreed in writing. Acquiror and the Stockholders’ Committee shall instruct the Accounting Referee to use its reasonable best efforts to deliver to the remaining differences so submitted, whether Stockholders’ Committee and to what extent, if any, an Adjustment Item at issue requires adjustment. The Independent Accounting Firm will base its determination only on evidence brought to it by the parties and shall not conduct an audit. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller Acquiror as promptly as practicable (but in no event later than the thirtieth (30th) day 30 days after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and dispute to the Accounting Referee) a statement report setting forth the Accounting Referee’s calculation of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, as soon as practicable after such submissiondisputed amounts. The Independent Accounting Firm's determination Such report shall be conclusive final and binding upon the parties. With respect to each disputed Adjustment ItemStockholders’ Committee, Acquiror and the fees Surviving Corporation, and disbursements the resulting calculation of the Independent Accounting Firm associated with determining that Closing Adjustment Item Amount shall be allocated between Holdco final for all purposes of this Agreement. The fees, costs and Seller in inverse proportion to the allocation expenses of the disputed amount Accounting Referee shall be borne (i) by Acquiror if the aggregate difference between the finally determined Closing Adjustment Amount and Acquiror’s calculation of such Adjustment Item made by amount at the Independent Accounting Firm between Holdco and Seller. For example, if Seller contended that time the amount of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000, then the amount in dispute with respect to such Adjustment Item would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is disagreement(s) were submitted to the Independent Accounting Firm for resolution. Holdco Referee is greater than the aggregate difference between the finally determined Closing Adjustment Amount and Seller shall make available the Stockholders’ Committee’s calculation of such amount at the time the disagreement(s) were submitted to the Independent Accounting Firm all relevant books Referee, (ii) by the Stockholders’ Committee if the aggregate difference between the finally determined Closing Adjustment Amount and records and any work papers relating the Stockholders’ Committee’s calculation of such amount at the time the disagreement(s) were submitted to the Second Disagreement Notice Accounting Referee is greater than the aggregate difference between the finally determined Closing Adjustment Amount and all Acquiror’s calculation of such amount at the time the disagreement(s) were submitted to the Accounting Referee, and (iii) in any other items reasonably requested case, one-half by Acquiror and one-half by the Independent Accounting FirmStockholders’ Committee.

Adjustment Dispute Resolution. To resolve any disputes If the Sellers’ Representative does not deliver an Adjustment Notice of Objection to the Buyer with respect to an item contained in connection with the Adjustment Statement within the Adjustment Review Period, the Sellers shall be deemed to have accepted the Buyer’s calculation of the underlying item of the Closing Working Capital, the Hostess Transaction Costs, Hostess Cash, the Closing Rollover Indebtedness Amount and the LTIP Payment Amount, as applicable, and such calculation shall be final, conclusive and binding. If the Sellers’ Representative delivers an Adjustment Items that Notice of Objection to the Buyer within the Adjustment Review Period, the Buyer and the Sellers shall, during the 30 days following such delivery or any mutually agreed extension thereof, use their good faith efforts to reach agreement on the disputed items and amounts in order to determine the amount of the disputed Closing Working Capital, the Hostess Transaction Costs, Hostess Cash, the Closing Rollover Indebtedness Amount or the LTIP Payment Amount, as applicable. If, at the end of such period or any mutually agreed extension thereof, the Buyer and the Sellers are not resolved unable to resolve their disagreements, they shall jointly retain and refer their disagreements to a nationally recognized independent accounting firm mutually acceptable to the Buyer and the Sellers or any individual who, in the reasonable determination of the Buyer and the Sellers, is qualified and capable to serve in the capacity for which such nationally recognized independent accounting firm would have served pursuant to the procedures set forth in this Section 3.04(a) above2.5 (such firm or individual, the parties “Independent Expert”). The Parties shall submit instruct the dispute Independent Expert promptly to Ernst & Young LLPreview this Section 2.5, certified public accountantsas well as the Adjustment Statement, or such Notice of Objection and any other nationally recognized firm of independent public accountants that does not serve as an auditor ofmaterials reasonably requested by the Independent Expert, or consultant toand to determine, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine on the basis of the standards set forth herein and only solely with respect to the remaining differences disputed items and amounts so submitted, whether and to what extent, if any, an the Closing Working Capital, the Hostess Transaction Costs, Hostess Cash, the Closing Rollover Indebtedness Amount or the LTIP Payment Amount, as applicable, set forth in the Adjustment Item at issue Statement requires adjustmentadjustment pursuant to the terms of this Agreement. The Independent Accounting Firm will Expert shall base its determination only solely on evidence brought to it written submissions by the parties Buyer and shall the Sellers and not conduct on an auditindependent review. The Independent Accounting Firm shall deliver its written determination to Holdco Buyer and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination shall be conclusive and binding upon the parties. With respect to each disputed Adjustment Item, the fees and disbursements of the Independent Accounting Firm associated with determining that Adjustment Item shall be allocated between Holdco and Seller in inverse proportion to the allocation of the disputed amount of such Adjustment Item made by the Independent Accounting Firm between Holdco and Seller. For example, if Seller contended that the amount of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000, then the amount in dispute with respect to such Adjustment Item would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller Sellers shall make available to the Independent Accounting Firm Expert all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested by the Independent Accounting FirmExpert. As promptly as practicable, but in no event later than 45 days after its retention, the Independent Expert shall deliver to the Buyer and the Sellers a report that sets forth its resolution of the disputed items and amounts and its calculation of the Closing Working Capital, the Hostess Transaction Costs, Hostess Cash or the Closing Rollover Indebtedness Amount, as applicable; provided, however, that the Independent Expert may not assign a value to any item greater than the greatest value for such item claimed by the Buyer, on one hand, and the Sellers, on the other hand, nor less than the smallest value for such item claimed by the Buyer, on one hand, and the Sellers, on the other hand. The decision of the Independent Expert shall be final, conclusive and binding on the Parties. The costs and expenses of the Independent Expert shall be allocated between the Buyer, on the one hand, and the Sellers, on the other hand, based upon the percentage that the portion of the aggregate contested amount not awarded to each Party bears to the aggregate amount actually contested by such Party, as determined by the Independent Expert. The Buyer and the Sellers agree to execute, if requested by the Independent Expert, a reasonable engagement letter, including customary indemnities in favor of the Independent Expert.

Adjustment Dispute Resolution. To resolve any disputes in connection with If Sellers’ Representative and Buyer are unable to reach agreement concerning the calculation of Adjustment Items that are not resolved Closing Date Schedule pursuant to Section 2.4(e)(ii), they shall submit such dispute to BDO USA LLP, or if BDO USA LLP is unwilling or unable to so serve, to an independent accounting or financial consulting firm of recognized national standing mutually selected by Buyer and the procedures Sellers’ Representative (the “Accounting Arbitrator”), for resolution pursuant to this Section 2.4(f), and instruct the Accounting Arbitrator to review the disputed items or amounts for the purpose of final determination of the amounts set forth on the Closing Date Schedule, provided that the Accounting Arbitrator shall rely on the methodologies set forth in Section 3.04(a) abovethe Working Capital Schedule. In making such determination and calculations, the parties Accounting Arbitrator shall submit the dispute to Ernst & Young LLP, certified public accountants, consider only those items or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine amounts on the basis Closing Date Schedule as to which the Sellers’ Representative has disagreed in writing and which have not been the subject of mutual written resolution pursuant to Section ‎2.4(e)(ii). Each of Buyer and the standards set forth herein and only with respect Sellers’ Representative shall promptly provide their assertions regarding the disputed amounts concerning the Closing Date Schedule pursuant to Section ‎2.4(e)(ii) in writing to the remaining differences so submitted, whether Accounting Arbitrator and to what extent, if any, an Adjustment Item at issue requires adjustmenteach other. The Independent Accounting Firm will Arbitrator shall base its determination only solely on evidence brought to it by the written submissions of the parties and shall not conduct an auditindependent investigation. The Independent Accounting Firm Arbitrator shall deliver be instructed to render its written determination with respect to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, such disagreements as soon as reasonably practicable (which the parties hereto agree should not be later than thirty (30) days after such submissionsubmission of the dispute) in a report setting forth the Accounting Arbitrator’s calculation of the disputed amounts (which calculation shall be within the range of dispute in respect of each disputed item between the amounts set forth on the Closing Date Schedule and the notice of dispute delivered in accordance with Section 2.4(e)(ii)). The Independent determination of the Accounting Firm's determination Arbitrator shall be deemed to be an arbitration award and judgment may be entered on the award, and the Accounting Arbitrator’s written report shall be final, conclusive and binding upon on all of the partiesparties hereto and the resulting Closing Date Schedule and amounts set forth thereon shall be final, conclusive and binding for all purposes. With respect to Buyer, on the one hand, and Sellers’ Representative (on behalf of the Sellers), on the other hand, shall each disputed Adjustment Item, the pay their own fees and disbursements expenses. The fees, costs and expenses of the Independent Accounting Firm associated with determining that Adjustment Item Arbitrator shall be allocated between Holdco to and Seller in borne by Bxxxx and Sellers’ Representative (on behalf of the Sellers and the Optionholder), based on the inverse proportion of the percentage that the Accounting Arbitrator determines (before such allocation) bears to the allocation total amount of the disputed amount of such Adjustment Item made by total items in dispute as originally submitted to the Independent Accounting Firm between Holdco and SellerArbitrator. For example, if Seller contended that should the items in dispute total in amount to one thousand dollars ($1,000) and the Accounting Arbitrator awards six hundred dollars ($600) in favor of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000Sellers’ Representative’s position, then sixty percent (60%) of the amount in dispute with respect to such Adjustment Item costs of its review would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% borne by Bxxxx and Seller would pay forty percent (40% %) of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested costs would be borne by the Independent Accounting FirmSellers’ Representative.

Adjustment Dispute Resolution. To resolve any disputes in connection with (i) If the calculation of Adjustment Items that Seller Representative and Buyer are not resolved unable to reach agreement concerning the Closing Date Schedule pursuant to Section 2.5(e)(ii), they shall submit such dispute to an independent accounting or financial consulting firm of recognized national standing mutually selected by Xxxxx and the procedures Seller Representative (the “Accounting Arbitrator”), for resolution pursuant to this Section 2.5(f) and instruct the Accounting Arbitrator to review the disputed items or amounts for the purpose of final determination of the amounts set forth on the Closing Date Schedule; provided that the Accounting ​ ​ ​ Arbitrator shall rely on GAAP, consistently applied, and using the same GAAP accounting principles, practices, methodologies and policies that were used to prepare the Financial Statements, provided that in Section 3.04(a) abovethe event of a conflict between GAAP and consistent application thereof in the Financial Statements, GAAP shall prevail. In making such determination and calculations, the Accounting Arbitrator shall consider only those items or amounts on the Closing Date Schedule as to which the Seller Representative has disagreed in writing. Each of Buyer and the Seller Representative shall promptly provide their assertions regarding the disputed amounts concerning the Closing Date Schedule pursuant to Section 2.5(e)(ii) in writing to the Accounting Arbitrator and to each other. The Accounting Arbitrator shall be instructed to function as an expert (bindend adviseur) and not as an arbitrator (arbiter) and to render its determination with respect to such disagreements as soon as reasonably practicable (which the parties shall submit hereto agree should not be later than thirty (30) days after submission of the dispute to Ernst & Young LLP, certified public accountants, or such other nationally recognized firm the Accounting Arbitrator) a report setting forth the Accounting Arbitrator’s calculation of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any the disputed amounts (which calculation shall be within the range of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine dispute in respect of each disputed item between the amounts set forth on the basis Closing Date Schedule and the notice of dispute delivered by the standards set forth herein and only Seller Representative in accordance with respect to the remaining differences so submitted, whether and to what extent, if any, an Adjustment Item at issue requires adjustmentSection 2.5(e)(ii)). The Independent Accounting Firm will Arbitrator shall base its determination only solely on evidence brought to it by the written submissions of the parties and shall not conduct an auditindependent investigation. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco Absent fraud or Sellermanifest error, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination report shall be conclusive final and binding upon the partiesSeller Representative, Xxxxxxx and Buyer and the resulting Closing Date Schedule and amounts set forth thereon shall be final for all purposes of this Agreement. With respect to The Buyer, on the one hand, and the Seller Representative (on behalf of Xxxxxxx), on the other hand, shall each disputed Adjustment Item, the pay their own fees and disbursements expenses. (ii) The fees, costs and expenses of the Independent Accounting Firm associated with determining that Adjustment Item Arbitrator shall be allocated between Holdco to and borne by the Buyer and the Seller in Representative, on behalf of Sellers, based on the inverse proportion of the percentage that the Accounting Arbitrator determination (before such allocation) bears to the allocation total amount of the disputed amount of such Adjustment Item made by total items in dispute as originally submitted to the Independent Accounting Firm between Holdco and SellerArbitrator. For example, if should the items in dispute total in amount to one thousand dollars ($1,000) and the Accounting Arbitrator awards six hundred dollars ($600) in favor of the Seller contended Representative’s position, sixty percent (60%) of the costs of its review would be borne by Xxxxx and forty percent (40%) of the costs would be borne by the Seller Representative, on behalf of the Sellers. (iii) Buyer, the Company, the Seller Representative and the Sellers agree that the amount of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000, then the amount procedure set forth in dispute this Section 2.5(f) for resolving disputes with respect to the Closing Date Schedule shall be the sole and exclusive method for resolving any such Adjustment Item would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested by the Independent Accounting Firmdisputes.

Adjustment Dispute Resolution. To resolve any disputes in connection with If the calculation of Adjustment Items that Sellers and Buyer are not resolved unable to reach agreement concerning the Closing Date Schedule pursuant to Section 2.3(d)(ii), they shall submit such dispute to Deloitte Touche Tohmatsu Limited or, if such Person is not willing or is unable to accept such engagement, an independent accounting or financial consulting firm of recognized national standing mutually selected by Buyer and the procedures Sellers (the “Accounting Arbitrator”) (provided that if Buyer and the Sellers are unable to select an Accounting Arbitrator within ten days after receiving notice that Deloitte Touche Tohmatsu Limited is not willing or is unable to accept such engagement, then each shall select a nationally recognized accounting or financial consulting firm, which firms will jointly select a third nationally recognized independent accounting or financial consulting firm which shall act as the Accounting Arbitrator), for resolution pursuant to this Section 2.3(e) and instruct the Accounting Arbitrator to review the disputed items or amounts for the purpose of final determination of the amounts set forth on the Closing Date Schedule provided, the Accounting Arbitrator shall rely on the methodologies set forth in Section 3.04(a) abovethe Working Capital Schedule and GAAP, provided that in the event of a conflict between the Working Capital Schedule and GAAP, the parties Working Capital Schedule shall submit prevail. In making such determination and calculations, the dispute to Ernst & Young LLP, certified public accountants, Accounting Arbitrator shall consider only those items or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine amounts on the basis Closing Date Schedule as to which the Sellers and Buyer have disagreed in writing and submitted to the Accounting Arbitrator. Each of Buyer and the standards set forth herein Sellers shall promptly provide their assertions regarding the disputed amounts concerning the Closing Date Schedule pursuant to Section 2.3(d)(ii) in writing to the Accounting Arbitrator and only to each other. The Accounting Arbitrator shall be instructed to render its determination with respect to such disagreements as soon as reasonably practicable (which the remaining differences so submitted, whether parties hereto agree should not be later than 30 days after submission of the dispute) in a report setting forth the Accounting Arbitrator’s calculation of the disputed amounts (which calculation shall be within the range of dispute in respect of each disputed item between the amounts set forth on the Closing Date Schedule and to what extent, if any, an Adjustment Item at issue requires adjustmentthe notice of dispute delivered in accordance with Section 2.3(d)(ii)). The Independent Accounting Firm will Arbitrator shall base its determination only solely on evidence brought to it by the written submissions of the parties and shall not conduct an auditindependent investigation. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination Such report shall be conclusive final and binding upon the partiesSellers and Buyer and the resulting Closing Date Schedule and amounts set forth thereon shall be final for all purposes of this Agreement. With respect to Buyer and the Sellers shall each disputed Adjustment Item, the pay their own fees and disbursements expenses. The fees, costs and expenses of the Independent Accounting Firm associated with determining that Adjustment Item Arbitrator shall be allocated between Holdco to and Seller in borne by Buyer and the Sellers based on the inverse proportion of the percentage that the Accounting Arbitrator determination (before such allocation) bears to the allocation total amount of the disputed amount of such Adjustment Item made by total items in dispute as originally submitted to the Independent Accounting Firm between Holdco and SellerArbitrator. For example, if Seller contended that should the items in dispute total in amount to $1,000 and the Accounting Arbitrator awards $600 in favor of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000Sellers’ 19 position, then 60% of the amount in dispute with respect to such Adjustment Item costs of its review would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% borne by Buyer and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested costs would be borne by the Independent Accounting FirmSellers.

Adjustment Dispute Resolution. To resolve If the Seller Representative and Buyer are unable to reach agreement concerning any disputes in connection with items on the calculation of Adjustment Items Closing Date Schedule that are not resolved disputed pursuant to the procedures Adjustment Dispute Notice during such thirty (30) day period set forth in the penultimate sentence of Section 3.04(a) above2.2(d)(ii), then either Party may thereafter submit such dispute to Xxxxx Xxxxxxxx LLP or another independent accounting or financial consulting firm of recognized national standing mutually selected by Xxxxx and the Seller Representative (the “Accounting Firm”), for resolution pursuant to this Section 2.2(e). In resolving any disputed item, the parties Accounting Firm (x) shall submit determine the dispute Company Debt, Closing Cash, Transaction Expenses, Working Capital, Working Capital Deficiency (if any) or Working Capital Surplus (if any), and the Adjusted Purchase Price, in each case in accordance with the respective definitions thereof, (y) shall limit its review to Ernst & Young LLP, certified public accountants, those items or such other nationally recognized firm of independent public accountants that does not serve amounts as to which the Seller Representative has disagreed in the Adjustment Dispute Notice and (z) shall act as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts expert and not as arbitrators, determine on an arbitrator. Each of Buyer and the basis of Seller Representative shall promptly provide their assertions regarding the standards set forth herein disputed amounts concerning the Closing Date Schedule pursuant to Section 2.2(d)(ii) in writing to the Accounting Firm and only to each other. The Accounting Firm shall be instructed to render its determination with respect to such disagreements as soon as reasonably practicable (which the remaining differences so submittedparties hereto agree should not be later than thirty (30) days after submission of the dispute) in a written report setting forth the Accounting Firm’s calculations of the disputed amounts (the “Expert Calculations”). The determination of the Adjusted Purchase Price made by the Accounting Firm shall be final and binding on Buyer, whether the Seller Representative and to what extentthe Sellers for all purposes of this Agreement, absent manifest error. The Expert Calculations (A) shall reflect in detail the differences, if any, an between the calculation of the Adjusted Purchase Price reflected in the Adjustment Item at issue requires adjustment. The Independent Accounting Firm will base its determination only Dispute Notice and the calculation of the Adjusted Purchase Price set forth in the Closing Date Schedule and (B) with respect to any specific discrepancy or disagreement, shall be no greater than the higher amount calculated by Buyer on evidence brought to it the Closing Date Schedule or by the parties and shall not conduct an audit. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than Representative on the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or SellerAdjustment Dispute Notice, as the case may be, thereto, and, in any case, and no lower than the lower amount calculated by Buyer on the Closing Date Schedule or by the Seller Representative on the Adjustment Dispute Notice as soon as practicable after such submissionthe case may be. The Independent Accounting Firm's Firm shall base its determination solely on the written submissions of the Buyer and the Seller Representative and shall be conclusive not conduct an independent investigation. Buyer, on the one hand, and binding upon the parties. With respect to Seller Representative on behalf of Xxxxxxx, on the other hand, shall each disputed Adjustment Item, the pay their own fees and disbursements expenses. The fees, costs and expenses of the Independent Accounting Firm associated with determining that Adjustment Item shall be allocated between Holdco to and borne by Xxxxx and the Seller in Representative, on behalf of Sellers, based on the inverse proportion of the percentage that the Accounting Firm determination (before such allocation) bears to the allocation total amount of the disputed amount of such Adjustment Item made by total items in dispute as originally submitted to the Independent Accounting Firm between Holdco and SellerFirm. For example, if Seller contended that should the items in dispute total in amount to one thousand dollars ($1,000) and the Accounting Firm awards six hundred dollars ($600) in favor of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000Seller Representative’s position, then sixty percent (60%) of the amount in dispute with respect to such Adjustment Item costs of its review would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% borne by Xxxxx and Seller would pay forty percent (40% %) of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested costs would be borne by the Independent Accounting FirmSeller Representative, on behalf of Sellers.

Adjustment Dispute Resolution. To The parties shall use commercially reasonable efforts to resolve any disputes or controversies arising out of or in connection with the calculation of Adjustment Items that Adjustments. If such disputes and controversies are not so resolved within 30 days after the parties' first meeting regarding such matters (or if a party does not use commercially reasonable efforts to schedule and attend such a meeting), then such disputes and controversies shall be submitted to an independent accounting firm with a national reputation jointly selected by Buyer and the Shareholder (the "Independent Accountant") who shall attempt to resolve the parties' disagreements about the Disputed Amounts by providing the parties with their written judgment and analysis of the appropriate Adjusted Principal Amount. If Buyer and the Shareholder still have not resolved all their disagreements regarding the Disputed Amounts by the 30th day after Buyer's and Shareholder's receipt of this written judgment and analysis by the Independent Accountant (which shall be delivered to the parties within 30 days after submission to such Independent Accountant), the parties may submit such disagreements to arbitration pursuant to the following procedures set forth (all other disputes and controversies arising in connection with this Agreement or the Related Agreements shall be resolved by agreement of the parties or by a court of law as described in Section 3.04(a7.1: (i) aboveAfter a dispute or controversy arises, either party may, in a written notice delivered to the parties other party, demand such arbitration. Such notice shall submit designate the dispute to Ernst & Young LLP, certified public accountants, or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine on the basis name of the standards set forth herein and only arbitrator (who shall be an impartial person) appointed by such party demanding arbitration, together with respect to the remaining differences so submitted, whether and to what extent, if any, an Adjustment Item at issue requires adjustment. The Independent Accounting Firm will base its determination only on evidence brought to it by the parties and shall not conduct an audit. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections matter in controversy. (ii) Within 30 days after receipt of Holdco or Sellersuch demand, as the case may be, thereto, andother party shall, in any casea written notice delivered to the other party, as soon as practicable after name such submission. The Independent Accounting Firmparty's determination arbitrator (who shall be conclusive and binding upon the partiesan impartial person). With respect If such party fails to each disputed Adjustment Item, the fees and disbursements of the Independent Accounting Firm associated with determining that Adjustment Item shall be allocated between Holdco and Seller in inverse proportion to the allocation of the disputed amount of such Adjustment Item made by the Independent Accounting Firm between Holdco and Seller. For example, if Seller contended that the amount of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000name an arbitrator, then the amount second arbitrator shall be named by the American Arbitration Association (the "AAA"). The two arbitrators so selected shall name a third arbitrator (who shall be an impartial person) within 30 days, or in lieu of such agreement on a third arbitrator by the two arbitrators so appointed, the third arbitrator shall be appointed by the AAA. If any arbitrator appointed hereunder shall die, resign, refuse, or become unable to act before an arbitration decision is rendered, then the vacancy shall be filled by the methods set forth in this Section for the original appointment of such arbitrator. (iii) Each party shall bear its own arbitration costs and expenses. The arbitration hearing shall be held in Dallas, Texas at a location designated by a majority of the arbitrators. The Commercial Arbitration Rules of the American Arbitration Association shall be incorporated by reference at such hearing, and the substantive laws of the State of Texas (excluding conflict of laws provisions) shall apply. (iv) The arbitration hearing shall be concluded within ten days unless otherwise ordered by the arbitrators and the written award thereon shall be made within 15 days after the close of submission of evidence. The arbitrators shall determine whether one of the parties is the prevailing party in such arbitration and shall include in the award a cash assessment against the non-prevailing party equal to all reasonable out-of-pocket costs and expenses of the prevailing party and the costs and expenses of the arbitrators. If no party is the prevailing party, then each party shall bear its own costs and expenses and Buyer and the Shareholder each shall pay 50% of the costs and expenses of the arbitrators. An award rendered by a majority of the arbitrators appointed pursuant hereto shall be final and binding on all parties to the proceeding, shall resolve the question of costs of the arbitrators and all related matters, and judgment on such award may be entered and enforced by either party in any court of competent jurisdiction. (v) The parties stipulate that the provisions of this Section shall be a complete defense to any suit, action or proceeding instituted in any federal, state or local court or before any administrative tribunal with respect to any controversy or dispute arising out of the Second Payment. The arbitration provisions hereof shall, with respect to such Adjustment Item would be $100,000controversy or dispute, survive the termination or expiration of this Agreement or the Related Agreements. Accordingly, if Neither any party hereto nor the Independent Accounting Firm determined that arbitrators may disclose the correct amount was $260,000, Holdco would pay 60% and Seller would pay 40% existence or results of any arbitration hereunder without the prior written consent of the fees and disbursements associated with other party; nor will any party hereto disclose to any third party any confidential information disclosed by any other party hereto in the Independent Accounting Firm's determination course of an arbitration hereunder without the Prepayment amountprior written consent of such other party. For purposes of Notwithstanding the foregoing calculationforegoing, the parties shall instruct acknowledge that Buyer may disclose the Independent Accounting Firm existence or results of an arbitration hereunder, as well as information otherwise required to provide a breakdown be disclosed by deposition, subpoena or other court or governmental action in connection with Buyer's obligations under the Securities Exchange Act of its overall fees 1934 and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco rules and Seller shall make available to regulations promulgated thereunder and in connection with Buyer's registration of offerings of securities under the Independent Accounting Firm all relevant books Securities Act of 1933 and records the rules and any work papers relating to the Second Disagreement Notice and all other items reasonably requested by the Independent Accounting Firmregulations promulgated thereunder.

Adjustment Dispute Resolution. To resolve any disputes in connection with If the calculation of Adjustment Items that Seller Representative and Buyer are not resolved unable to reach agreement concerning the Closing Date Schedule pursuant to Section 2.2(d)(ii), they shall submit such dispute to an independent accounting or financial consulting firm of recognized national standing mutually selected by Buyer and the procedures Seller Representative (the “Accounting Arbitrator”) for resolution pursuant to this Section 2.2(e) and instruct the Accounting Arbitrator to review the disputed items or amounts for the purpose of final determination of the amounts set forth on the Closing Date Schedule, provided that the Accounting Arbitrator shall rely on the methodologies set forth in Section 3.04(a) abovethe Working Capital Schedule, prepared in accordance with GAAP (subject to the Working Capital GAAP Exception), as consistently applied in accordance with the Company’s past practices. In making such determination and calculations, the parties Accounting Arbitrator shall submit the dispute to Ernst & Young LLP, certified public accountants, consider only those items or such other nationally recognized firm of independent public accountants that does not serve as an auditor of, or consultant to, Holdco, Seller or any of their respective Affiliates (an "Independent Accounting Firm") as may be jointly selected by Seller and Holdco, who shall, acting as experts and not as arbitrators, determine amounts on the basis Closing Date Schedule as to which the Seller Representative has disagreed in writing. Each of Buyer and the standards set forth herein Seller Representative shall promptly provide their assertions regarding the disputed amounts concerning the Closing Date Schedule pursuant to Section 2.2(d)(ii) in writing to the Accounting Arbitrator and only to each other. The Accounting Arbitrator shall be instructed to render its determination with respect to such disagreements as soon as reasonably practicable (which the remaining differences so submitted, whether parties hereto agree should not be later than 30 days after submission of the dispute) a report setting forth the Accounting Arbitrator’s calculation of the disputed amounts (which calculation shall be within the range of dispute in respect of each disputed item between the amounts set forth on the Closing Date Schedule and to what extent, if any, an Adjustment Item at issue requires adjustmentthe notice of dispute delivered in accordance with Section 2.2(d)(ii)). The Independent Accounting Firm will Arbitrator shall base its determination only solely on evidence brought to it by the written submissions and supporting materials of the parties and shall not conduct an auditindependent audit or investigation. The Independent Accounting Firm shall deliver its written determination to Holdco and Seller no later than the thirtieth (30th) day after the submission to it of the Disagreement Notice and/or Second Disagreement Notice and a statement of the objections of Holdco or Seller, as the case may be, thereto, and, in any case, as soon as practicable after such submission. The Independent Accounting Firm's determination Such report shall be conclusive final and binding upon the partiesSeller Representative, Sellers, Additional Sellers and Buyer and the resulting Closing Date Schedule and amounts set forth thereon shall be final for all purposes of this Agreement. With respect to Buyer, on the one hand, and the Seller Representative on behalf of Sellers and Additional Sellers, on the other hand, shall each disputed Adjustment Item, the pay their own fees and disbursements expenses. The fees, costs and expenses of the Independent Accounting Firm associated with determining that Adjustment Item Arbitrator shall be allocated between Holdco to and borne by Buyer and the Seller in Representative, on behalf of Sellers and Additional Sellers, based on the inverse proportion of the percentage that the Accounting Arbitrator determination (before such allocation) bears to the allocation total amount of the disputed amount of such Adjustment Item made by total items in dispute as originally submitted to the Independent Accounting Firm between Holdco and SellerArbitrator. For example, if Seller contended that should the items in dispute total in amount to $1,000 and the Accounting Arbitrator awards $600 in favor of the Prepayments Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice objecting to such amount contending that is was only $200,000Seller Representative’s position, then 60% of the amount in dispute with respect to such Adjustment Item costs of its review would be $100,000. Accordingly, if the Independent Accounting Firm determined that the correct amount was $260,000, Holdco would pay 60% borne by Buyer and Seller would pay 40% of the fees and disbursements associated with the Independent Accounting Firm's determination of the Prepayment amount. For purposes of the foregoing calculation, the parties shall instruct the Independent Accounting Firm to provide a breakdown of its overall fees and disbursements between each Adjustment Item which is submitted to the Independent Accounting Firm for resolution. Holdco and Seller shall make available to the Independent Accounting Firm all relevant books and records and any work papers relating to the Second Disagreement Notice and all other items reasonably requested costs would be borne by the Independent Accounting FirmSeller Representative, on behalf of Sellers and Additional Sellers.