Common use of Adjustment to the Merger Consideration Clause in Contracts

Adjustment to the Merger Consideration. (a) The Merger Consideration shall be increased or reduced as set forth in ‎Section 2.8(f) hereof. Any increase or decrease in the Merger Consideration pursuant to this ‎Section 2.8 shall be referred to as a “Merger Consideration Adjustment”. (b) Within one-hundred and ten (110) days after the Closing Date, Buyer shall prepare and deliver to the Stockholders’ Representative a statement (the “Preliminary Closing Statement”), which sets forth Buyer’s calculation of (i) the Net Working Capital (the “Closing Net Working Capital”) and the Net Working Capital Adjustment Amount based thereon, (ii) the Cash and Cash Equivalents (the “Closing Cash”), (iii) the Indebtedness of the Group Companies (the “Closing Indebtedness”), (iv) the Company Transaction Expenses (the “Closing Company Transaction Expenses”), in the case of each of sub clauses (i)–(iv), as of 11:59pm Eastern Time on the day immediately prior to the Closing Date (it being understood and agreed that no additional Indebtedness or Company Transaction Expenses shall be incurred between 11:59pm Eastern Time on the day immediately prior to the Closing Date and the Closing, except to the extent such amounts are included in the amount of Closing Indebtedness or Closing Company Transaction Expenses, as the case may be, set forth in the Preliminary Closing Statement), and (v) the amount of the Merger Consideration based thereon, in each case prepared (x) as of immediately preceding the Closing and (y) in accordance with and based upon the Accounting Principles along with reasonable supporting detail to evidence the Buyer’s calculations of such amounts. For the avoidance of doubt, the Accounting Principles and the Net Working Capital Example shall be the only accounting principles, policies, procedures, practices, judgments, applications or methodologies used or relied upon in the preparation of the Preliminary Closing Statement, the calculation of each of Closing Net Working Capital, Closing Cash, Closing Indebtedness and the Closing Company Transaction Expenses and no other accounting principles, policies, procedures, practices, judgments, applications or methodologies shall be introduced by any party hereto or the Accounting Firm. (c) The Stockholders’ Representative shall have a period of thirty (30) days after delivery to it of the Preliminary Closing Statement to deliver to Buyer written notice of the Stockholders’ Representative’s disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement together with the Stockholders’ Representative’s proposed amount for the item that is the subject of such disagreement and (if reasonably available) reasonable supporting detail to evidence the Stockholders’ calculations of such amount (a “Notice of Disagreement”). At all times prior to a determination of the Final Closing Statement, the Final Closing Net Working Capital, Final Closing Cash, Final Closing Indebtedness, Final Closing Company Transaction Expenses and Final Merger Consideration Amount in accordance with ‎Section 2.8(c) or ‎Section 2.8(d), as applicable, Buyer shall (i) permit the Stockholders’ Representative and its accountants to consult with the Company, Buyer and their respective accountants (subject to such accountants’ consent) at reasonable times, upon reasonable prior notice and without unduly interfering with the Company’s or Buyer’s business, and (ii) provide to the Stockholders’ Representative and its accountants reasonable access during reasonable hours, upon reasonable prior notice, under reasonable circumstances and without unduly interfering with Buyer’s or its Affiliates’ business to all relevant books and records relating to the preparation of the Preliminary Closing Statement. If a Notice of Disagreement is received by Buyer, then the Preliminary Closing Statement (as revised in accordance with clause (A) or (B) below shall become the Final Closing Statement and become final and binding upon the Parties on the earlier of the date (A) on which the Stockholders’ Representative and Buyer resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and (B) all matters in dispute are finally resolved in writing by the Accounting Firm. During the thirty (30) days following Buyer’s receipt of a Notice of Disagreement, Buyer and the Stockholders’ Representative shall seek in good faith to resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and upon such resolution, the Final Closing Statement shall be prepared in accordance with the agreement of Buyer and the Stockholders’ Representative. (d) If any disputed items in the Notice of Disagreement have not been resolved within thirty (30) days following delivery of such Notice of Disagreement (or such longer period as Buyer and the Stockholders’ Representative may mutually agree in writing) (collectively, the “Disputed Items”), such Disputed Items shall be submitted to, and such Disputed Items shall be resolved by, (i) Ernst & Young, or (ii) in the event such accounting firm is unable or unwilling to take such assignment, a nationally recognized accounting firm mutually agreed upon by Buyer and the Stockholders’ Representative or, if Buyer and the Stockholders’ Representative cannot agree on an accounting firm within thirty (30) days after timely delivery of a Notice of Disagreement, each of Buyer and the Stockholders’ Representative shall select a nationally recognized accounting firm and such two accounting firms shall designate a third nationally recognized accounting firm that neither presently is, nor in the past three (3) years has been, engaged by either Party or any of their respective Affiliates. Ernst & Young, the accounting firm so agreed to by Buyer and the Stockholders’ Representative, or the third accounting firm so selected by the two accounting firms, is hereinafter referred to as the “Accounting Firm” (it being understood that in making such calculation, the Accounting Firm shall be functioning as an expert and not as an arbitrator and shall not have any authority to interpret any provision of this ‎Section 2.8 or any other provision of this Agreement). Buyer and the Stockholders’ Representative shall submit to the Accounting Firm for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. Buyer and the Stockholders’ Representative shall instruct the Accounting Firm to select one of its partners experienced in purchase price adjustment disputes to make a final determination of the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Closing Company Transaction Expenses and the amount of the Merger Consideration based thereon, in each case, calculated with reference to the items that are in dispute as set forth in the Notice of Disagreement. Buyer and the Stockholders’ Representative shall instruct the Accounting Firm that, in resolving the items in the Notice of Disagreement that are still in dispute and in determining the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Closing Company Transaction Expenses and the amount of the Merger Consideration based thereon, the Accounting Firm shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by Buyer, on the one hand, or the Stockholders’ Representative, on the other hand, or (B) less than the smallest value for such item assigned by Buyer, on the one hand, or the Stockholders’ Representative, on the other hand, (ii) make its determination in accordance with the guidelines and procedures set forth in this Agreement solely based on the written calculations and other supporting information provided by each party and, solely if requested by the Accounting Firm, an in-person meeting concerning the dispute, at which meeting each of Buyer and the Stockholders’ Representative shall have the right to present their respective positions with respect to the dispute and have present their respective advisors, counsel and accountants, (iii) render a final resolution in writing to Buyer and the Stockholders’ Representative (which final resolution shall be requested by Buyer and the Stockholders’ Representative to be delivered not more than thirty (30) days following submission of such disputed matters to the Accounting Firm), which, absent manifest error (in which case such report shall be returned to the Accounting Firm for correction and such corrected report). shall be final, conclusive and binding on the Parties with respect to the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Closing Company Transaction Expenses and the amount of the Merger Consideration based thereon, and (iv) provide a written report to Buyer and the Stockholders’ Representative, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between Buyer, on the one hand, and the Equity Holders, on the other hand, based upon the percentage by which the portion of the contested amount not awarded to each of Buyer and the Stockholders’ Representative bears to the amount actually contested by such Party. (e) The Preliminary Closing Statement (as adjusted by the agreement of the Parties or at the direction of the Accounting Firm, as applicable) shall be deemed final for the purposes of this ‎Section 2.8 upon the earliest of the (i) failure of the Stockholders’ Representative to notify Buyer of a dispute within thirty (30) days (as may be extended pursuant to ‎Section 2.8(c)) after the Stockholders’ Representative receives the Preliminary Closing Statement, (ii) resolution of all disputes, pursuant to ‎Section 2.8(c), by Buyer and the Stockholders’ Representative, and (iii) resolution of all disputes, pursuant to ‎Section 2.8(d), by the Accounting Firm. (f) Within five (5) Business Days following the determination of the Final Closing Statement in accordance with ‎Section 2.8(c), ‎Section 2.8(d) or ‎Section 2.8(e), as applicable: (i) if the Estimated Merger Consideration Amount exceeds the Final Merger Consideration Amount, then Buyer shall be entitled to claim from the Adjustment Escrow Fund an amount equal to such excess (and if the Adjustment Escrow Fund is insufficient to cover such adjustment in full, Buyer shall be entitled to claim such shortfall from the Indemnity Escrow Fund), and Buyer and the Stockholders’ Representative will promptly deliver a joint written instruction to the Escrow Agent instructing it to release (A) to Buyer or its designee the amount of such excess from the Adjustment Escrow Fund (and the Indemnity Escrow Fund, as applicable) and (B) if any amount remains in the Adjustment Escrow Fund after giving effect to the foregoing clause ‎(A), (1) pay to the Stockholders’ Representative an amount equal to the remainder of the Adjustment Escrow Fund multiplied by the aggregate Pro Rata Percentages of the Stockholders, for further distribution to the Stockholders in accordance with their respective Pro Rata Percentages, and (2) pay to the Company an amount equal to the remainder of the Adjustment Escrow Fund, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders who have delivered properly completed and executed Option Holder Acknowledgments, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (ii) if the Final Merger Consideration Amount exceeds the Estimated Merger Consideration Amount (such excess, the “Upward Adjustment”), then Buyer shall (A) pay to the Stockholders’ Representative an amount equal to the remainder of such Upward Adjustment multiplied by the aggregate Pro Rata Percentages of the Stockholders, for further distribution to the Stockholders in accordance with their respective Pro Rata Percentages, and (B) pay to the Company an amount equal to such Upward Adjustment, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders who have delivered properly completed and executed Option Holder Acknowledgments, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (g) For the avoidance of doubt, none of the Equity Holders, the Stockholders’ Representative nor any of their respective Affiliates shall have any liability under this ‎Section 2.8 for any Net Working Capital Adjustment Amount in excess of the then-remaining Adjustment Escrow Amount and the Indemnity Escrow Fund. Recovery from the Adjustment Escrow Fund and the Indemnity Escrow Fund, as applicable, shall be the sole and exclusive remedy available to Buyer for any claims by Buyer against Stockholders’ Representative or otherwise arising out of or relating to the Merger Consideration Adjustment contemplated by this ‎Section 2.8, and neither Buyer nor the Surviving Company or any of their respective Affiliates shall have any claim against the Stockholders’ Representative in respect thereof. (h) All payments required under this ‎Section 2.8 shall be made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing by the recipient(s). (i) It is expressly understood and agreed that Buyer’s payment of the Merger Consideration Adjustment, if any, (i) to the Company in respect of the portion of the Merger Consideration Adjustment to be paid to the Option Holders and payment thereof to the Option Holders by the Company and (ii) to the Stockholders’ Representative in respect of the portion of the Merger Consideration Adjustment to be paid to the other Equity Holders, shall be in full satisfaction of Buyer’s obligation with respect to such amounts, and, once paid in accordance with the terms of this Agreement, Buyer and its Affiliates shall have no liability to the Stockholders’ Representative, any Equity Holder or any other Person for any amounts in respect of the same.

Adjustment to the Merger Consideration. (a) The Merger Consideration shall be increased or reduced as set forth in ‎Section 2.8(fSection 2.12(f) hereof. Any increase or decrease in the Merger Consideration pursuant to this ‎Section 2.8 Section 2.12 shall be referred to as a “Merger Consideration Adjustment”. Any payments made in respect of any Merger Consideration Adjustment pursuant to this Section 2.12 shall be treated as an adjustment to the Merger Consideration for all Tax purposes unless otherwise required by any applicable Law. (b) Within one-hundred and ten ninety (11090) days after the Closing Date, Buyer PubCo shall prepare and deliver to the Stockholders’ Representative a statement (the “Preliminary Closing Statement”), which sets forth BuyerPubCo’s calculation of (i) the Net Working Capital as of 11:59 p.m. Mountain Time on the day immediately preceding the Closing Date (the “Closing Net Working Capital”) and the Net Working Capital Adjustment Amount based thereon), (ii) the Cash and Cash Equivalents as of 11:59 p.m. Mountain Time on the day immediately preceding the Closing Date (the “Closing Cash”), (iii) the Indebtedness of the Group Companies Company and the Company Subsidiaries as of immediately prior to the Closing (the “Closing Indebtedness”), and (iv) the Company Transaction Expenses as of immediately prior to the Closing (the “Closing Company Transaction Expenses”), in the each case of each of sub clauses (i)–(iv)prepared in accordance with GAAP, as of 11:59pm Eastern Time on the day immediately prior to the Closing Date (it being understood and agreed that no additional Indebtedness or Company Transaction Expenses shall be incurred between 11:59pm Eastern Time on the day immediately prior to the Closing Date and the Closing, except to the extent such amounts are included in the amount of Closing Indebtedness or Closing Company Transaction Expenses, as the case may be, set forth in the Preliminary Closing Statement), and (v) the amount of the Merger Consideration based thereon, in each case prepared (x) as of immediately preceding the Closing and (y) in accordance with and based upon the Accounting Principles along with reasonable supporting detail to evidence the Buyer’s calculations of such amounts. For the avoidance of doubtGAAP, the Accounting Principles and the Net Working Capital Example shall be the only accounting principles, policies, procedures, practices, judgments, applications or and methodologies used or relied upon in preparing the preparation of the Preliminary Closing StatementFinancial Statements, along with reasonable supporting detail to evidence PubCo’s calculations, explanations and assumptions for the calculation of each of Closing Net Working Capital, Closing Cash, Closing Indebtedness and the Closing Company Transaction Expenses and no other accounting principles, policies, procedures, practices, judgments, applications or methodologies shall be introduced by any party hereto or the Accounting Firmsuch amounts. (c) The Stockholders’ Representative shall have a period of thirty (30) days after delivery to the date it of receives the Preliminary Closing Statement from PubCo to deliver to Buyer PubCo written notice of the Stockholders’ Representative’s disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement together with the Stockholders’ Representative’s proposed amount for the item that is the subject of such disagreement and (if reasonably available) reasonable supporting detail to evidence the Stockholders’ calculations of such amount (a “Notice of Disagreement”). At all times prior to a determination During the thirty (30) day period following the Stockholders’ Representative’s receipt of the Final Preliminary Closing Statement, the Final Closing Net Working Capital, Final Closing Cash, Final Closing Indebtedness, Final Closing Company Transaction Expenses and Final Merger Consideration Amount in accordance with ‎Section 2.8(c) or ‎Section 2.8(d), as applicable, Buyer PubCo shall (i) permit the Stockholders’ Representative and its accountants to consult with the Company, Buyer Company and their respective PubCo’s accountants (subject to such accountants’ consent) at reasonable times, upon reasonable prior notice and without unduly interfering with the Company’s or Buyer’s businessas reasonable, and (ii) provide to the Stockholders’ Representative and its accountants reasonable access during reasonable hours, upon reasonable prior notice, normal business hours and under reasonable circumstances and without unduly interfering with Buyer’s or its Affiliates’ business to all relevant books and records and any work papers (including those of PubCo’s accountants subject to the execution of appropriate agreements with PubCo’s accountants) relating to the preparation of the Preliminary Closing Statement. If a Notice of Disagreement is received by BuyerPubCo, then the Preliminary Closing Statement (as revised in accordance with clause (A) or (B) below below) shall become the Final Closing Statement and become final and binding upon the Parties on the earlier of the date (A) on which the Stockholders’ Representative and Buyer PubCo resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and (B) all matters in dispute are finally resolved in writing by the Accounting Firm. During the thirty sixty (3060) days following BuyerPubCo’s receipt of a Notice of Disagreement, Buyer PubCo and the Stockholders’ Representative shall seek in good faith to resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and upon such resolution, the Final Closing Statement shall be prepared in accordance with the agreement of Buyer PubCo and the Stockholders’ Representative. (d) If any PubCo and the Stockholders’ Representative are unable to resolve the disputed items set forth in the Notice of Disagreement have not been resolved within thirty (30) days following delivery PubCo’s receipt of such Notice of Disagreement (or such longer period as Buyer PubCo and the Stockholders’ Representative may mutually agree in writing) (collectively, the “Disputed Items”), following notice of such Disputed Items dispute, such dispute shall be submitted to, and all issues having a bearing on such Disputed Items dispute shall be resolved by, (i) Ernst & Youngthe dispute resolution group of BDO New York, or (ii) in the event such accounting firm is unable or unwilling to take such assignment, the dispute resolution group of a nationally recognized accounting firm mutually agreed upon by Buyer PubCo and the Stockholders’ Representative or, if Buyer PubCo and the Stockholders’ Representative cannot agree on an accounting firm within thirty sixty (3060) days after timely delivery of a Notice of Disagreement, each of Buyer PubCo and the Stockholders’ Representative shall select a nationally recognized accounting firm and such two (2) accounting firms shall designate the dispute resolution group of a third nationally recognized accounting firm that neither presently is, nor in the past three (3) years has been, engaged by either Party or any of their respective Affiliates. Ernst & YoungThe “Accounting Firm” means either (x) the dispute resolution group of BDO New York, (y) the accounting firm so agreed to by Buyer PubCo and the Stockholders’ Representative, or (z) the third accounting firm so selected by the two (2) accounting firms, is hereinafter referred to as the “Accounting Firm” (it being understood that in making such calculation, the Accounting Firm shall be functioning as an expert and not as an arbitrator and shall not have any authority to interpret any provision of each case in accordance with this ‎Section 2.8 or any other provision of this AgreementSection 2.12(d). Buyer PubCo and the Stockholders’ Representative shall submit to the Accounting Firm Firm, as experts and not as arbitrators, for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. Buyer PubCo and the Stockholders’ Representative shall instruct the Accounting Firm to select one (1) of its partners experienced in purchase price adjustment disputes to make a final determination of the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Indebtedness and Closing Company Transaction Expenses and the amount of the Merger Consideration based thereon, in each case, calculated with reference to the items that are in dispute as set forth in the Notice of Disagreement. Buyer PubCo and the Stockholders’ Representative shall instruct the Accounting Firm that, in resolving the PubCo items in the Notice of Disagreement that are still in dispute and in determining the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Indebtedness and Closing Company Transaction Expenses and the amount of the Merger Consideration based thereonExpenses, the Accounting Firm shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by BuyerPubCo, on the one hand, or the Stockholders’ Representative, on the other hand, or (B) less than the smallest value for such item assigned by BuyerPubCo, on the one hand, or the Stockholders’ Representative, on the other hand, (ii) make its determination based on an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement solely based on the Agreement) and a single written calculations and other supporting information provided presentation submitted by each party and, solely if requested by the Accounting Firm, an in-person meeting concerning the dispute, at which meeting each of Buyer PubCo and the Stockholders’ Representative shall have and a single written response of each of PubCo and the right Stockholders’ Representative to present their respective positions with respect to the dispute and have present their respective advisors, counsel and accountants, each such presentation so submitted (iii) render a final resolution in writing to Buyer PubCo and the Stockholders’ Representative (which final resolution shall be requested by Buyer PubCo and the Stockholders’ Representative to be delivered not more than thirty (30) days following submission of such disputed matters to the Accounting Firm), which, absent manifest error (in which case such report shall be returned to the Accounting Firm for correction and such corrected report). error, shall be final, conclusive and binding on the Parties with respect to the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Indebtedness and Closing Company Transaction Expenses and the amount of the Merger Consideration based thereonExpenses, and (iv) provide a written report to Buyer PubCo and the Stockholders’ Representative, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between BuyerPubCo, on the one hand, and the Equity Holders, on the other hand, based upon the percentage by which the portion of the contested amount not awarded to each of Buyer PubCo and the Stockholders’ Representative bears to the amount actually contested by such Party. (e) The Preliminary Closing Statement (as adjusted ; provided, that any amount owed by the agreement of the Parties or at the direction of the Accounting Firm, as applicable) Equity Holders shall be deemed final for the purposes of this ‎Section 2.8 upon the earliest of the (i) failure of the Stockholders’ Representative to notify Buyer of a dispute within thirty (30) days (as may be extended pursuant to ‎Section 2.8(c)) after the Stockholders’ Representative receives the Preliminary Closing Statement, (ii) resolution of all disputes, pursuant to ‎Section 2.8(c), by Buyer and the Stockholders’ Representative, and (iii) resolution of all disputes, pursuant to ‎Section 2.8(d), by the Accounting Firm. (f) Within five (5) Business Days following the determination of the Final Closing Statement in accordance with ‎Section 2.8(c), ‎Section 2.8(d) or ‎Section 2.8(e), as applicable: (i) if the Estimated Merger Consideration Amount exceeds the Final Merger Consideration Amount, then Buyer shall be entitled to claim satisfied solely from the Adjustment Escrow Fund an amount equal to such excess (and if the Adjustment Escrow Fund is insufficient to cover such adjustment in full, Buyer shall be entitled to claim such shortfall from the Indemnity Escrow Fund), and Buyer and the Stockholders’ Representative will promptly deliver a joint written instruction to the Escrow Agent instructing it to release (A) to Buyer or its designee the amount of such excess from the Adjustment Escrow Fund (and the Indemnity Escrow Fund, as applicable) and (B) if any amount remains in the Adjustment Escrow Fund after giving effect to the foregoing clause ‎(A), (1) pay to the Stockholders’ Representative an amount equal to the remainder of the Adjustment Escrow Fund multiplied by the aggregate Pro Rata Percentages of the Stockholders, for further distribution to the Stockholders in accordance with their respective Pro Rata Percentages, and (2) pay to the Company an amount equal to the remainder of the Adjustment Escrow Fund, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders who have delivered properly completed and executed Option Holder Acknowledgments, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (ii) if the Final Merger Consideration Amount exceeds the Estimated Merger Consideration Amount (such excess, the “Upward Adjustment”), then Buyer shall (A) pay to the Stockholders’ Representative an amount equal to the remainder of such Upward Adjustment multiplied by the aggregate Pro Rata Percentages of the Stockholders, for further distribution to the Stockholders in accordance with their respective Pro Rata Percentages, and (B) pay to the Company an amount equal to such Upward Adjustment, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders who have delivered properly completed and executed Option Holder Acknowledgments, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (g) For the avoidance of doubt, none of the Equity Holders, the Stockholders’ Representative nor any of their respective Affiliates shall have any liability under this ‎Section 2.8 for any Net Working Capital Adjustment Amount in excess of the then-remaining Adjustment Escrow Amount and the Indemnity Escrow Fund. Recovery from the Adjustment Escrow Fund and the Indemnity Escrow Fund, as applicable, shall be the sole and exclusive remedy available to Buyer for any claims by Buyer against Stockholders’ Representative or otherwise arising out of or relating to the Merger Consideration Adjustment contemplated by this ‎Section 2.8, and neither Buyer nor the Surviving Company or any of their respective Affiliates shall have any claim against the Stockholders’ Representative in respect thereof. (h) All payments required under this ‎Section 2.8 shall be made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing by the recipient(s). (i) It is expressly understood and agreed that Buyer’s payment of the Merger Consideration Adjustment, if any, (i) to the Company in respect of the portion of the Merger Consideration Adjustment to be paid to the Option Holders and payment thereof to the Option Holders by the Company and (ii) to the Stockholders’ Representative in respect of the portion of the Merger Consideration Adjustment to be paid to the other Equity Holders, shall be in full satisfaction of Buyer’s obligation with respect to such amounts, and, once paid in accordance with the terms of this Agreement, Buyer and its Affiliates shall have no liability to the Stockholders’ Representative, any Equity Holder or any other Person for any amounts in respect of the same.

Adjustment to the Merger Consideration. (a) The Merger Consideration shall be increased or reduced as set forth in ‎Section 2.8(fSection 2.9(f) hereof. Any increase or decrease in the Merger Consideration pursuant to this ‎Section 2.8 Section 2.9 shall be referred to as a “Merger Consideration Adjustment”. Any issuance of stock made in respect of any Merger Consideration Adjustment pursuant to this Section 2.9 shall be treated as an adjustment to the Merger Consideration for all Tax purposes unless otherwise required by any applicable Law. (b) Within one-hundred and ten ninety (11090) days after the Closing Date, Buyer Parent shall prepare and deliver to the Stockholders’ Representative Majority Stockholder a statement (the “Preliminary Closing Statement”), which sets forth BuyerParent’s calculation of (i) the Net Working Capital as of 11:59 pm on the day prior to the Closing Date (the “Closing Net Working Capital”) and the Net Working Capital Adjustment Amount based thereon), (ii) the Cash and Cash Equivalents held by the Company as of the Effective Time (the “Closing Cash”), and (iii) the aggregate amount of all Indebtedness of the Group Companies Company as of the Effective Time (the “Closing Indebtedness”), (iv) the Company Transaction Expenses (the “Closing Company Transaction Expenses”), in the case of each of sub clauses (i)–(iv), as of 11:59pm Eastern Time on the day immediately prior to the Closing Date (it being understood and agreed that no additional Indebtedness or Company Transaction Expenses shall be incurred between 11:59pm Eastern Time on the day immediately prior to the Closing Date and the Closing, except to the extent such amounts are included in the amount of Closing Indebtedness or Closing Company Transaction Expenses, as the case may be, set forth in the Preliminary Closing Statement), and (v) the amount of the Merger Consideration based thereon, in each case prepared (x) as of immediately preceding the Closing and (y) in accordance with GAAP, and based upon to the Accounting Principles along extent in accordance with reasonable supporting detail to evidence the Buyer’s calculations of such amounts. For the avoidance of doubtGAAP, the Accounting Principles and the Net Working Capital Example shall be the only accounting principles, policies, procedures, practices, judgments, applications or and methodologies used or relied upon in preparing the preparation of the Preliminary Closing StatementFinancial Statements, along with reasonable supporting detail to evidence Parent’s calculations, explanations and assumptions for the calculation of each of Closing Net Working Capital, Closing Cash, Closing Indebtedness and the Closing Company Transaction Expenses and no other accounting principles, policies, procedures, practices, judgments, applications or methodologies shall be introduced by any party hereto or the Accounting Firmsuch amounts. (c) The Stockholders’ Representative Majority Stockholder shall have a period of thirty (30) days after delivery to the date it of receives the Preliminary Closing Statement from Parent to deliver to Buyer Parent written notice of the Stockholders’ RepresentativeMajority Stockholder’s disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement together with the Stockholders’ Representative’s proposed amount for the item that is the subject of such disagreement and (if reasonably available) reasonable supporting detail to evidence the Stockholders’ calculations of such amount (a “”Notice of Disagreement”). At all times prior to a determination During the thirty (30) day period following the Majority Stockholder’s receipt of the Final Preliminary Closing Statement, the Final Closing Net Working Capital, Final Closing Cash, Final Closing Indebtedness, Final Closing Company Transaction Expenses and Final Merger Consideration Amount in accordance with ‎Section 2.8(c) or ‎Section 2.8(d), as applicable, Buyer Parent shall (i) permit the Stockholders’ Representative Majority Stockholder and its accountants to consult with the Company, Buyer Company and their respective Parent’s accountants (subject to such accountants’ consent) at reasonable times, upon reasonable prior notice and without unduly interfering with the Company’s or Buyer’s businessas reasonable, and (ii) provide to the Stockholders’ Representative Majority Stockholder and its accountants reasonable access during reasonable hours, upon reasonable prior notice, normal business hours and under reasonable circumstances and without unduly interfering with Buyer’s or its Affiliates’ business to all relevant books and records relating to the preparation of the Preliminary Closing Statement. If a Notice of Disagreement is received by BuyerParent, then the Preliminary Closing Statement (as revised in accordance with clause (A) or (B) below below) shall become the Final Closing Statement and become final and binding upon the Parties on the earlier of the date (A) on which the Stockholders’ Representative Majority Stockholder and Buyer Parent resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and (B) all matters in dispute are finally resolved in writing by the Accounting Firm. During the thirty sixty (3060) days following BuyerParent’s receipt of a Notice of Disagreement, Buyer Parent and the Stockholders’ Representative Majority Stockholder shall seek in good faith to resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and upon such resolution, the Final Closing Statement shall be prepared in accordance with the agreement of Buyer Parent and the Stockholders’ RepresentativeMajority Stockholder. (d) If any Parent and the Majority Stockholder are unable to resolve the disputed items set forth in the Notice of Disagreement have not been resolved within thirty fifteen (3015) days following delivery Parent’s receipt of such Notice of Disagreement (or such longer period as Buyer Parent and the Stockholders’ Representative Majority Stockholder may mutually agree in writing) (collectively, the “Disputed Items”), following notice of such Disputed Items dispute, such dispute shall be submitted to, and all issues having a bearing on such Disputed Items dispute shall be resolved by, (i) Ernst & Young, or (ii) in the event such accounting firm is unable or unwilling to take such assignment, dispute resolution group of a nationally recognized accounting firm mutually agreed upon by Buyer Parent and the Stockholders’ Representative Majority Stockholder or, if Buyer Parent and the Stockholders’ Representative Majority Stockholder cannot agree on an accounting firm within thirty sixty (3060) days after timely delivery of a Notice of Disagreement, each of Buyer Parent and the Stockholders’ Representative Majority Stockholder shall select a nationally recognized accounting firm and such two (2) accounting firms shall designate the dispute resolution group of a third nationally recognized accounting firm that neither presently is, nor in the past three (3) years has been, engaged by either Party or any of their respective Affiliates. Ernst & Young, The dispute resolution group of the accounting firm so agreed to by Buyer Parent and the Stockholders’ RepresentativeMajority Stockholder, or the dispute resolution group of a third accounting firm so selected by the two (2) accounting firms, acting as an expert and not an arbitrator, is hereinafter referred to as the “Accounting Firm” (it being understood that in making such calculation, the Accounting Firm shall be functioning as an expert and not as an arbitrator and shall not have any authority to interpret any provision of this ‎Section 2.8 or any other provision of this Agreement)”. Buyer Parent and the Stockholders’ Representative Majority Stockholder shall submit to the Accounting Firm Firm, as experts and not as arbitrators, for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. Buyer Parent and the Stockholders’ Representative Majority Stockholder shall instruct the Accounting Firm to select one (1) of its partners experienced in purchase price adjustment disputes to make a final determination of the Closing Net Working Capital, Closing Cash, Cash and Closing Indebtedness, Closing Company Transaction Expenses and the amount of the Merger Consideration based thereon, in each case, Indebtedness calculated with reference to the items that are in dispute as set forth in the Notice of Disagreement. Buyer Parent and the Stockholders’ Representative Majority Stockholder shall instruct the Accounting Firm that, in resolving the Parent items in the Notice of Disagreement that are still in dispute and in determining the Closing Net Working Capital, Closing Cash, Cash and Closing Indebtedness, Closing Company Transaction Expenses and the amount of the Merger Consideration based thereon, the Accounting Firm shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by BuyerParent, on the one hand, or the Stockholders’ RepresentativeMajority Stockholder, on the other hand, or (B) less than the smallest value for such item assigned by BuyerParent, on the one hand, or the Stockholders’ RepresentativeMajority Stockholder, on the other hand, (ii) make its determination based on a review (which will be in accordance with the guidelines and procedures set forth in this Agreement solely based on the Agreement) and a single written calculations and other supporting information provided presentation submitted by each party and, solely if requested by of Parent and the Accounting Firm, an in-person meeting concerning the dispute, at which meeting Majority Stockholder and a single written response of each of Buyer Parent and the Stockholders’ Representative shall have the right Majority Stockholder to present their respective positions with respect to the dispute and have present their respective advisors, counsel and accountants, each such presentation so submitted (iii) render a final resolution in writing to Buyer Parent and the Stockholders’ Representative Majority Stockholder (which final resolution shall be requested by Buyer Parent and the Stockholders’ Representative Majority Stockholder to be delivered not more than thirty (30) days following submission of such disputed matters to the Accounting Firm), which, absent manifest error (in which case such report shall be returned to the Accounting Firm for correction and such corrected report). error, shall be final, conclusive and binding on the Parties with respect to the Closing Net Working Capital, Closing Cash, Cash and Closing Indebtedness, Closing Company Transaction Expenses and the amount of the Merger Consideration based thereon, and (iv) provide a written report to Buyer Parent and the Stockholders’ RepresentativeMajority Stockholder, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between Buyer, on paid by the one hand, and the Equity Holders, on the other hand, based upon the percentage by which the portion of the contested amount not awarded to each of Buyer and the Stockholders’ Representative bears to the amount actually contested by such PartyCompany. (e) The Preliminary Closing Statement (as adjusted by the agreement of the Parties or at the direction of the Accounting Firm, as applicable) shall be deemed final for the purposes of this ‎Section 2.8 Section 2.9 upon the earliest of the (i) failure of the Stockholders’ Representative to notify Buyer Parent of a dispute within thirty (30) days (as may be extended pursuant to ‎Section 2.8(c)) after the Stockholders’ Representative Majority Stockholder receives the Preliminary Closing Statement, (ii) resolution of all disputes, pursuant to ‎Section 2.8(cSection 2.9(c), by Buyer Parent and the Stockholders’ RepresentativeMajority Stockholder, and (iii) resolution of all disputes, pursuant to ‎Section 2.8(dSection 2.9(d), by the Accounting Firm. (f) Within five (5) Business Days following the determination of the Final Closing Statement Statement, the Final Closing Net Working Capital, Final Closing Cash, and Final Closing Indebtedness in accordance with ‎Section 2.8(c), ‎Section 2.8(dSection 2.9(c) or ‎Section 2.8(eSection 2.9(d), as applicable: (i) if the Estimated Merger Consideration Amount exceeds the there is a Final Merger Consideration AmountDeficit, then Buyer Parent shall be entitled to claim solely from the Adjustment Working Capital Escrow Fund an amount the number of whole shares of Parent Common Stock equal to such excess the lesser of (and if A) the Adjustment Escrow Fund is insufficient to cover such adjustment in full, Buyer shall be entitled to claim such shortfall from remaining amount of the Indemnity Working Capital Escrow Fund), and Buyer (B) the Final Deficit, and Parent and the Stockholders’ Representative will Majority Stockholder shall promptly deliver a joint written instruction to the Escrow Agent instructing it to release such amount to Parent for cancellation; and (Aii) to Buyer or its designee if there is a Final Surplus, then Parent shall deposit with the Exchange Agent, on behalf of the Company Stockholders, an amount of such excess from the Adjustment Escrow Fund Parent Common Stock (and the Indemnity Escrow Fund, as applicable) and (B) if any amount remains in the Adjustment Escrow Fund after giving effect rounded to the foregoing clause ‎(A), (1nearest whole number) pay to the Stockholders’ Representative an amount equal to the remainder of the Adjustment Escrow Fund such Final Surplus multiplied by the aggregate Pro Rata Percentages of the Company Stockholders, for further distribution to which the Stockholders in accordance with their respective Pro Rata Percentages, and (2) pay Exchange Agent shall distribute to the Company an amount equal to the remainder of the Adjustment Escrow Fund, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders who have delivered properly completed and executed Option Holder Acknowledgments, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (ii) if the Final Merger Consideration Amount exceeds the Estimated Merger Consideration Amount (such excess, the “Upward Adjustment”), then Buyer shall (A) pay to the Stockholders’ Representative an amount equal to the remainder of such Upward Adjustment multiplied by the aggregate Pro Rata Percentages of the Stockholders, for further distribution to the Stockholders in accordance with their respective Pro Rata Percentages, and (B) pay to the Company an amount equal to such Upward Adjustment, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders who have delivered properly completed and executed Option Holder Acknowledgments, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (g) For If any shares of Parent Common Stock remain in the avoidance of doubtWorking Capital Escrow Fund after giving effect to the payments in Section 2.9(f), none Parent and the Majority Stockholder shall promptly deliver a joint written instruction to the Escrow Agent instructing it to release to the Exchange Agent, on behalf of the Equity HoldersCompany Stockholders, the number whole shares of Parent Common Stock equal to such remaining Working Capital Escrow Fund multiplied by the aggregate Pro Rata Percentages of the Company Stockholders’ Representative nor any of , which the Exchange Agent shall distribute to the Company Stockholders in accordance with their respective Affiliates shall have any liability under this ‎Section 2.8 for any Net Working Capital Adjustment Amount in excess of the then-remaining Adjustment Escrow Amount and the Indemnity Escrow Fund. Recovery from the Adjustment Escrow Fund and the Indemnity Escrow Fund, as applicable, shall be the sole and exclusive remedy available to Buyer for any claims by Buyer against Stockholders’ Representative or otherwise arising out of or relating to the Merger Consideration Adjustment contemplated by this ‎Section 2.8, and neither Buyer nor the Surviving Company or any of their respective Affiliates shall have any claim against the Stockholders’ Representative in respect thereofPro Rata Percentages. (h) All payments required under this ‎Section 2.8 The Indemnification Escrow Amount and the Working Capital Escrow Amount to be deposited in the Indemnification Escrow Fund and the Working Capital Escrow Fund, respectively, shall be made issued in cash by wire transfer the names of immediately available funds the Company Stockholders (in restricted book entry form) in accordance with their respective Pro Rata Percentages. The Indemnification Escrow Amount and the Working Capital Escrow Amount will appear as issued and outstanding on Parent’s balance sheet and will be legally outstanding under the DGCL. Any dividends, distributions or other income paid on or otherwise accruing to such bank account(s) as any Indemnification Escrow Amount and the Working Capital Escrow Amount shall be designated distributed by Parent to the Company Stockholders on a current basis in writing by accordance with their respective Pro Rata Percentages and Parent’s Organizational Documents. While the recipient(s). (i) It is expressly understood Indemnification Escrow Amount and agreed the Working Capital Escrow Amount are held in the Indemnification Escrow Fund and the Working Capital Escrow Fund, respectively, each Company Stockholder shall be entitled to vote all of its respective shares in the Indemnification Escrow Amount and the Working Capital Escrow Amount that Buyerhave been issued in such Company Stockholder’s payment of name. For U.S. federal, state and local income tax purposes and foreign tax purposes, the Merger Consideration Adjustmentparties shall treat the Indemnification Escrow Amount and the Working Capital Escrow Amount, and all dividends, earnings or income, if any, (i) to earned with respect thereto while held by the Escrow Agent, as owned by the respective Company Stockholders until such time as they are released and the Company in respect of the portion of the Merger Consideration Adjustment to be paid to the Option Holders and payment thereof to the Option Holders by the Company and (ii) to the Stockholders’ Representative in respect of the portion of the Merger Consideration Adjustment to be paid to the other Equity Holders, Stockholders shall be in full satisfaction of Buyer’s obligation responsible for and the taxpayers on all Taxes due on all such dividends, earnings, interest or income earned, if any, with respect to such amounts, and, once paid in accordance with the terms of this Agreement, Buyer Indemnification Escrow Fund and its Affiliates shall have no liability to the Stockholders’ Representative, any Equity Holder or any other Person for any amounts in respect of the sameWorking Capital Escrow Fund.

Adjustment to the Merger Consideration. (a) The Merger Consideration shall be increased or reduced as set forth in ‎Section Section 2.8(f) hereof. Any increase or decrease in the Merger Consideration pursuant to this ‎Section Section 2.8 shall be referred to as a “Merger Consideration Adjustment”. (b) Within one-hundred and ten ninety (11090) days after the Closing Date, Buyer shall prepare and deliver to the Stockholders’ Representative a statement (the “Preliminary Closing Statement”), which sets forth Buyer’s calculation of (i) the Net Working Capital (the “Closing Net Working Capital”) and the Net Working Capital Adjustment Amount based thereon, (ii) the Cash and Cash Equivalents (the “Closing Cash”), (iii) the Indebtedness of the Group Companies (the “Closing Indebtedness”), (iv) the Company Transaction Expenses (the “Closing Company Transaction Expenses”), in the case of each of sub clauses (i)–(iv), as of 11:59pm Eastern Time on the day immediately prior to the Closing Date (it being understood and agreed that no additional Indebtedness or Company Transaction Expenses shall be incurred between 11:59pm Eastern Time on the day immediately prior to the Closing Date and the Closing, except to the extent such amounts are included in the amount of Closing Indebtedness or Closing Company Transaction Expenses, as the case may be, set forth in the Preliminary Closing Statement), and (v) the Audit Support Amount (the “Closing Audit Support Amount”) and (vi) the amount of the Merger Consideration based thereon, in each case prepared (x) as of immediately preceding the Closing and (y) in accordance with the accounting principles, policies, procedures, practices, judgments, applications and based upon methodologies used in preparing the Accounting Principles Financial Statements, along with reasonable supporting detail to evidence the Buyer’s calculations of such amounts. For the avoidance of doubt, the Accounting Principles accounting principles, policies, procedures, practices, judgments, applications and methodologies used in preparing the Net Working Capital Example Financial Statements shall be the only accounting principles, policies, procedures, practices, judgments, applications or methodologies used or relied upon in the preparation of the Preliminary Closing Statement, the calculation of each of Closing Net Working Capital, Closing Cash, Closing Indebtedness Indebtedness, Closing Company Transaction Expenses, and the Closing Company Transaction Expenses Audit Support Amount and no other accounting principles, policies, procedures, practices, judgments, applications or methodologies shall be introduced by any party hereto or the Accounting Firm. (c) The Stockholders’ Representative shall have a period of thirty (30) days after delivery to the date it of receives the Preliminary Closing Statement from Buyer to deliver to Buyer written notice of the Stockholders’ Representative’s disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement together with the Stockholders’ Representative’s proposed amount for the item that is the subject of such disagreement and (if reasonably available) reasonable supporting detail to evidence the Stockholders’ calculations of such amount (a “Notice of Disagreement”). At all times prior to a determination of the Final Closing Statement, the Final Closing Net Working Capital, Final Closing Cash, Final Closing Indebtedness, Final Closing Company Transaction Expenses Expenses, the Final Closing Audit Support Amount and Final Merger Consideration Amount in accordance with ‎Section Section 2.8(c) or ‎Section Section 2.8(d), as applicable, Buyer shall (i) permit the Stockholders’ Representative and its accountants to consult with the Company, Buyer Buyer, and their respective accountants (subject to such accountants’ consent) at reasonable times, upon reasonable prior notice and without unduly interfering with the Company’s or Buyer’s business, and (ii) provide to the Stockholders’ Representative and its accountants reasonable access during reasonable hours, upon reasonable prior notice, under reasonable circumstances and without unduly interfering with Buyer’s or its Affiliates’ business to all relevant books and records relating to the preparation of the Preliminary Closing Statement. If a Notice of Disagreement is received by Buyer, then the Preliminary Closing Statement (as revised in accordance with clause (A) or (B) below below) shall become the Final Closing Statement and become final and binding upon the Parties on the earlier of the date (A) on which the Stockholders’ Representative and Buyer resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and (B) all matters in dispute are finally resolved in writing by the Accounting Firm. During the thirty (30) days following Buyer’s receipt of a Notice of Disagreement, Buyer and the Stockholders’ Representative shall seek in good faith to resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and upon such resolution, the Final Closing Statement shall be prepared in accordance with the agreement of Buyer and the Stockholders’ Representative. (d) If any Buyer and the Stockholders’ Representative are unable to resolve the disputed items set forth in the Notice of Disagreement have not been resolved within thirty forty-five (3045) days following delivery Buyer’s receipt of such Notice of Disagreement (or such longer period as Buyer and the Stockholders’ Representative may mutually agree in writing) (collectively, the “Disputed Items”), following notice of such Disputed Items dispute, such dispute shall be submitted to, and such Disputed Items dispute shall be resolved by, (i) Ernst Deloitte & YoungTouche LLP, or (ii) in the event such accounting firm is unable or unwilling to take such assignment, a nationally recognized accounting firm mutually agreed upon by Buyer and the Stockholders’ Representative or, if Buyer and the Stockholders’ Representative cannot agree on an accounting firm within thirty (30) days after timely delivery of a Notice of Disagreement, each of Buyer and the Stockholders’ Representative shall select a nationally recognized accounting firm and such two accounting firms shall designate a third nationally recognized accounting firm that neither presently is, nor in the past three (3) years has been, engaged by either Party or any of their respective Affiliates. Ernst Deloitte & YoungTouche LLP, the accounting firm so agreed to by Buyer and the Stockholders’ Representative, or the third accounting firm so selected by the two accounting firms, is hereinafter referred to as the “Accounting Firm” (it being understood that in making such calculation, the Accounting Firm shall be functioning as an expert and not as an arbitrator and shall not have any authority to interpret any provision of this ‎Section 2.8 or any other provision of this Agreement)”. Buyer and the Stockholders’ Representative shall submit to the Accounting Firm for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. Buyer and the Stockholders’ Representative shall instruct the Accounting Firm to select one of its partners experienced in purchase price adjustment disputes to make a final determination of the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Closing Company Transaction Expenses Expenses, Closing Audit Support Amount and the amount of the Merger Consideration based thereon, in each case, calculated with reference to the items that are in dispute as set forth in the Notice of Disagreement. Buyer and the Stockholders’ Representative shall instruct the Accounting Firm that, in resolving the items in the Notice of Disagreement that are still in dispute and in determining the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Closing Company Transaction Expenses Expenses, and the amount of the Merger Consideration based thereonClosing Audit Support Amount, in each case, the Accounting Firm shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by Buyer, on the one hand, or the Stockholders’ Representative, on the other hand, or (B) less than the smallest value for such item assigned by Buyer, on the one hand, or the Stockholders’ Representative, on the other hand, (ii) make its determination based on an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement solely based on the written calculations and other supporting information provided by each party Agreement) and, solely if requested by at the Accounting Firm’s discretion, an ina one-person meeting day conference concerning the dispute, at which meeting conference each of Buyer and the Stockholders’ Representative shall have the right to present their respective positions with respect to the dispute and have present their respective advisors, counsel and accountants, (iii) render a final resolution in writing to Buyer and the Stockholders’ Representative (which final resolution shall be requested by Buyer and the Stockholders’ Representative to be delivered not more than thirty (30) days following submission of such disputed matters to the Accounting Firm), which, absent manifest error (in which case such report shall be returned to the Accounting Firm for correction and such corrected report). error, shall be final, conclusive and binding on the Parties with respect to the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Closing Company Transaction Expenses Expenses, Closing Audit Support Amount and the amount of the Merger Consideration based thereon, and (iv) provide a written report to Buyer and the Stockholders’ Representative, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between Buyer, on the one hand, and the Equity Holders, on the other hand, based upon the percentage by which the portion of the contested amount not awarded to each of Buyer and the Stockholders’ Representative bears to the amount actually contested by such Party. (e) The Preliminary Closing Statement (as adjusted by the agreement of the Parties or at the direction of the Accounting Firm, as applicable) shall be deemed final for the purposes of this ‎Section Section 2.8 upon the earliest of the (i) failure of the Stockholders’ Representative to notify Buyer of a dispute within thirty (30) days (as may be extended pursuant to ‎Section 2.8(c)) after the Stockholders’ Representative receives the Preliminary Closing Statement, (iii) resolution of all disputes, pursuant to ‎Section Section 2.8(c), by Buyer and the Stockholders’ Representative, and (iiiii) resolution of all disputes, pursuant to ‎Section Section 2.8(d), by the Accounting Firm. (f) Within five (5) Business Days following the determination of the Final Closing Statement in accordance with ‎Section Section 2.8(c), ‎Section 2.8(d) or ‎Section 2.8(eSection 2.8(d), as applicable: (i) if the Estimated Merger Consideration Amount exceeds the Final Merger Consideration Amount, then Buyer shall be entitled to claim from the Adjustment Escrow Fund an amount equal to such excess (and if the Adjustment Escrow Fund is insufficient to cover such adjustment in full, Buyer shall be entitled to claim such shortfall from the General Indemnity Escrow Fund), and Buyer and the Stockholders’ Representative will promptly deliver a joint written instruction to the Escrow Agent instructing it to release (A) to Buyer or its designee the amount of such excess from the Adjustment Escrow Fund (and the General Indemnity Escrow Fund, as applicable) and (B) if any amount remains in the Adjustment Escrow Fund after giving effect to the foregoing clause ‎(A(A), (x) to the Company an amount as directed by the Stockholders’ Representative, not to exceed the amount remaining in the Adjustment Escrow Fund, which the Company shall distribute to the SAR Participants in accordance with instructions provided by the Stockholders’ Representative, (y) to the Paying Agent from the remaining amount in the Adjustment Escrow Fund, if any, the amount required to satisfy the payments to be made to holders of the Preferred Stock pursuant to Sections 2.2(b)(i) through (v), for further distribution to the holders of Preferred Stock in the order of priority set forth in Sections 2.2(b)(i) through (v); and (C) thereafter, only to the extent a portion of Adjustment Escrow Fund remains unpaid after giving effect to the foregoing clauses (x) and (y), (1) pay to the Stockholders’ Representative Paying Agent an amount equal to the remainder of the Adjustment Escrow Fund multiplied by the aggregate Pro Rata Percentages of the Stockholders, for further distribution to the Stockholders in accordance with their respective Pro Rata Percentages, and (2) pay to the Company an amount equal to the remainder of the Adjustment Escrow Fund, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders who have delivered properly completed and executed Option Holder AcknowledgmentsHolders, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (ii) if the Final Merger Consideration Amount exceeds the Estimated Merger Consideration Amount (such excess, the “Upward Adjustment”), then Buyer shall shall: (A) first, pay to the Company an amount as directed by the Stockholders’ Representative (not to exceed the amount of the Upward Adjustment), which the Company shall distribute through the Company’s payroll system to the SAR Participants, less applicable withholding Tax, in accordance with instructions provided by the Stockholders’ Representative; (B) then, pay to the Paying Agent from the remaining amount of the Upward Adjustment, if any, the amount required to satisfy the payments to be made to holders of the Preferred Stock pursuant to Sections 2.2(b)(i) through (v), for further distribution to the holders of Preferred Stock in the order of priority set forth in Sections 2.2(b)(i) through (v); and (C) thereafter, only to the extent a portion of such Upward Adjustment remains unpaid after giving effect to the foregoing clauses (A) and (B), (x) pay to the Stockholders’ Representative Paying Agent an amount equal to the remainder of such Upward Adjustment multiplied by the aggregate Pro Rata Percentages of the Stockholders, for further distribution to the Stockholders in accordance with their respective Pro Rata Percentages, and (By) pay to the Company an amount equal to the remainder of such Upward Adjustment, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders who have delivered properly completed and executed Option Holder AcknowledgmentsHolders, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (g) For the avoidance of doubt, none of the Equity Holders, the Stockholders’ Representative nor any of their respective Affiliates shall have any liability under this ‎Section 2.8 for any Net Working Capital Adjustment Amount in excess of the then-remaining Adjustment Escrow Amount and the Indemnity Escrow Fund. Recovery from the Adjustment Escrow Fund and the Indemnity Escrow Fund, as applicable, shall be the sole and exclusive remedy available to Buyer for any claims by Buyer against Stockholders’ Representative or otherwise arising out of or relating to the Merger Consideration Adjustment contemplated by this ‎Section 2.8, and neither Buyer nor the Surviving Company or any of their respective Affiliates shall have any claim against the Stockholders’ Representative in respect thereof. (h) All payments required under this ‎Section Section 2.8 shall be made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing by the recipient(s). (h) Any payment that is to be made pursuant to Section 2.8(f) to an Equity Holder and that is attributable to an Option or to an SAR Participant shall be paid to the Company for disbursal through the Company’s payroll system and treated for Tax purposes as a payment, when and if made, of compensation for services. Accordingly Buyer shall reduce, or shall cause the Company to reduce, each such payment by the amount of any required federal, foreign, provincial, state, or local withholding Taxes payable by the Company with respect to such payment. Buyer shall pay or shall cause the Company to pay such withholding Taxes to the applicable Governmental Entities as required by Law. (i) It is expressly understood and agreed that Buyer’s payment of the Merger Consideration Adjustment, if any, (i) to the Company in respect of the portion of the Merger Consideration Adjustment to be paid to the Option Holders and payment thereof to the Option Holders by the Company and (ii) to the Stockholders’ Representative Paying Agent in respect of the portion of the Merger Consideration Adjustment to be paid to the other Equity Holders, shall be in full satisfaction of Buyer’s obligation with respect to such amounts, and, once paid in accordance with the terms of this Agreement, Buyer and its Affiliates shall have no liability to the Stockholders’ Representative, any Equity Holder or any other Person for any amounts in respect of the same.