Common use of CALCULATION OF MERGER CONSIDERATION Clause in Contracts

CALCULATION OF MERGER CONSIDERATION. (a) Not fewer than five Business Days prior to the Closing, the president or chief financial officer of the Company shall deliver to Parent a certificate setting forth the Company's good faith estimates of the amounts of Closing Working Capital, Closing Cash, Closing Indebtedness, the Series C Preferred Redemption Amount, Company Transaction Expenses and the adjustment to be made pursuant to Section 2.3(b), together with an estimated consolidated balance sheet of the Company and the Company Subsidiaries as of the Adjustment Time, and a calculation of the Merger Consideration based on the foregoing estimates (the "Price Certificate"). The Price Certificate shall also include the Company's determination of the Series C Preferred Per Share Amount and the Applicable Per Share Amount for each class and series of Junior Stock based on the foregoing estimate of the Merger Consideration. The Company will prepare the Price Certificate (including making the estimated determinations included therein) utilizing the principles set forth in Section 2.4(f). (b) No later than the 90th day after the Closing Date, Parent will prepare and deliver to the Stockholder Representative a consolidated balance sheet of the Company and the Company Subsidiaries as of the Adjustment Time (the "Closing Balance Sheet"), together with a statement (the "Closing Statement") setting forth Parent's determination of the amount of the Merger Consideration, which shall include Parent's determinations of Closing Working Capital, Closing Cash, Closing Indebtedness and Company Transaction Expenses. Parent will prepare the Closing Balance Sheet and the Closing Statement (including making the determinations included therein) utilizing the principles set forth in Section 2.4(f). (c) During the 60-day period immediately following the Stockholder Representative's receipt of the Closing Balance Sheet and the Closing Statement, the Stockholder Representative and its advisors and representatives (i) will be permitted to review, during normal business hours and upon reasonable notice, the Surviving Corporation's and the Company Subsidiaries' books and records and the working papers related to the preparation of the Closing Balance Sheet and the Closing Statement (including the determinations included therein and the audit performed on the Closing Balance Sheet), and (ii) will be given reasonable access, during normal business hours and upon reasonable notice, to knowledgeable employees and accounting professionals of Parent in order to facilitate the Stockholder Representative's review of the Closing Balance Sheet and the Closing Statement; provided that the review and access described in clauses (i) and (ii) will be conducted at times and in a manner that does not unreasonably interfere with the operation of Parent's, the Surviving Corporation's or the Company Subsidiaries' respective businesses. The Closing Balance Sheet and the Closing Statement (including the determinations included therein) will become final, binding and conclusive upon Parent and the Junior Stockholders (A) on the 60th day following the Stockholder Representative's receipt thereof, unless Parent receives from the Stockholder Representative prior to such 60th day written notice (a "Dispute Notice") of the Stockholder Representative's objection to any account or determination set forth in the Closing Balance Sheet or the Closing Statement (the magnitude of which the Stockholder Representative will use reasonable efforts to quantify) or (B) on such earlier date as the Stockholder Representative notifies Parent that it does not dispute the Closing Balance Sheet and Closing Statement. Any Dispute Notice will specify in reasonable detail the nature and dollar amount of any disagreement so asserted (collectively, the "Disputed Items"). The Stockholder Representative may dispute any amounts reflected on the Closing Balance Sheet or Closing Statement, but only to correct mathematical errors or on the basis that such amounts were not determined in accordance with Section 2.4(f) hereof. Any account or determination set forth or reflected on the Closing Balance Sheet or the Closing Statement that is not specifically objected to in the Dispute Notice will be deemed final, binding and conclusive upon Parent, the Junior Stockholders, and the Stockholder Representative upon delivery of the Dispute Notice. If the Stockholder Representative timely delivers a Dispute Notice, then the determination of the Merger Consideration will become final, binding and conclusive upon Parent, the Junior Stockholders and the Stockholder Representative on the first to occur of (x) the date on which Parent and the Stockholder Representative resolve in writing all differences they have with respect to the Disputed Items or (y) the date on which all of the Disputed Items that are not resolved by Parent and the Stockholder Representative in writing are finally resolved in writing by the Independent Accountants in accordance with Section 2.4(d). (d) During the 30 days following delivery of a Dispute Notice, Parent and the Stockholder Representative will seek in good faith to resolve in writing any differences which they have with respect to the Disputed Items. Any Disputed Item resolved in writing by Parent and the Stockholder Representative will be deemed final, binding and conclusive on Parent, the Junior Stockholders and the Stockholder Representative. If Parent and the Stockholder Representative do not reach agreement on all of the Disputed Items during such 30-day period (or such longer period as they shall mutually agree), then at the end of such 30-day (or longer) period Parent and the Stockholder Representative shall submit all unresolved Disputed Items (collectively, the "Unresolved Items") to a nationally recognized firm of independent certified public accountants with a nationwide audit and accounting practice and that is selected by mutual agreement of Parent and the Stockholder Representative) (the "Independent Accountants") to review and resolve such matters. The Independent Accountants will determine each Unresolved Item (the amount of which may not be more favorable to Parent than the related amount reflected in the Closing Statement nor more favorable to the Stockholder Representative and the Junior Stockholders than the related amount set forth in the Dispute Notice) in accordance with this Section 2.4(d) and Section 2.4(f) as promptly as may be reasonably practicable, and Parent and the Stockholder Representative will instruct the Independent Accountants to endeavor to complete such process within a period of no more than 45 days. The Independent Accountants may conduct such proceedings as the Independent Accountants believe, in their sole discretion, will assist in the determination of the Unresolved Items; provided that, except as Parent and the Stockholder Representative may otherwise agree in writing, all communications between Parent and the Stockholder Representative or any of their respective representatives, on the one hand, and the Independent Accountants, on the other hand, will be in writing with copies simultaneously delivered to the non-communicating party. The Independent Accountants' determination of the Unresolved Items will be final, binding and conclusive on Parent, the Junior Stockholders and the Stockholder Representative, effective as of the date the Independent Accountants' written determination is received by Parent and the Stockholder Representative. The fees and expenses of the Independent Accountants will be borne one-half by Parent and one-half by the Stockholder Representative (for the account of the Junior Stockholders), and each of Parent and the Stockholder Representative (for the account of the Junior Stockholders) will bear its own legal, accounting and other fees and expenses of participating in such dispute resolution procedure. (e) Upon final determination of the Merger Consideration pursuant to Section 2.4(c) or Section 2.4(d), an adjustment will be determined and paid as follows: (i) If the estimated amount of the Merger Consideration as set forth in the Price Certificate (the "Estimated Merger Consideration") exceeds the Merger Consideration as finally determined pursuant to Section 2.4(c) or Section 2.4(d) hereof, the Stockholder Representative and Parent shall within five (5) Business Days of the final determination of the Merger Consideration issue joint written instructions directing the Post-Closing Escrow Agent to pay to Parent the amount of such excess out of the Post-Closing Escrow Fund by wire transfer of immediately available funds to the account specified by Parent. (ii) If the Merger Consideration, as finally determined pursuant to Section 2.4(c) or Section 2.4(d) hereof, exceeds the Estimated Merger Consideration, Parent will pay to the Stockholder Representative (on behalf of the Junior Stockholders) the amount of such excess. Any amount payable by Parent pursuant to this Section 2.4(e)(ii) will be paid within five (5) Business Days of the final determination of the Merger Consideration by wire transfer of immediately available funds to the account specified by the Stockholder Representative. (f) For the purposes of Section 2.3 and this Section 2.4, each accounting term used herein will have the meaning that is applied thereto in accordance with GAAP as in effect on the Balance Sheet Date and, to the extent consistent with GAAP as in effect on the Balance Sheet Date, the accounting principles, policies, procedures and methodologies applied in preparing the Interim Balance Sheet and the accompanying statement of income. Each account included in the Price Certificate, the Closing Statement and the Closing Balance Sheet will be (A) calculated in accordance with GAAP as in effect on the Balance Sheet Date, and, to the extent consistent with GAAP as in effect on the Balance Sheet Date, utilizing the accounting principles, policies, procedures and methodologies applied in preparing the Company Financial Statements (without regard to materiality), including with respect to the nature or classification of accounts, and determining levels of reserves or levels of accruals; and (B) consistent with the books and records of the Company and the Company Subsidiaries and the definitions herein; provided, that in determining current assets and liabilities hereunder, (i) all accounting entries shall be taken into account regardless of their amount and all known errors and omissions shall be corrected, (ii) all known proper adjustments shall be made, (iii) appropriate reserves for all known and quantifiable liabilities and obligations for which reserves are appropriate in accordance with GAAP as in effect on the Balance Sheet Date shall be included, and (iv) such reserves may not be reversed or reduced except to reflect changes in facts and circumstances after the date hereof.

CALCULATION OF MERGER CONSIDERATION. (a) Not fewer No earlier than five ten Business Days nor less than three Business Days prior to the ClosingClosing Date, the president or chief financial officer of the Company shall deliver to Parent a certificate statement (the “Estimate Statement”) setting forth the Company's ’s good faith estimates of the amounts of Closing Working Capital, Closing Cash, the Closing Indebtedness, the Series C Preferred Redemption Amount, Unpaid Company Transaction Expenses Expenses, the Closing Cash and the adjustment to be made pursuant to Section 2.3(b), together with an estimated consolidated balance sheet of the Company and the Company Subsidiaries as of the Adjustment TimeClosing Taxes, and a calculation of the Merger Consideration (the “Estimated Merger Consideration”) based on the foregoing estimates (the "Price Certificate")estimates. The Price Certificate Estimate Statement shall also include the Company's ’s good faith initial determination of the Series C Preferred Per Share Amount and the Applicable Per Share Amount for each class and series of Junior Company Stock and each Warrant based on the foregoing estimate of the Estimated Merger Consideration. The Company will prepare the Price Certificate (including making the estimated determinations included therein) utilizing the principles set forth in Section 2.4(f). (b) No later than the 90th day after the Closing DateDate (the “Post-Closing Deadline”), Parent will prepare and deliver to the Stockholder Representative a consolidated balance sheet of the Company and the Company Subsidiaries as of the Adjustment Time (the "“Closing Balance Sheet"”), together with a statement (the "“Closing Statement"”) setting forth Parent's ’s determination of (i) the amount actual Closing Working Capital, (ii) the actual Closing Indebtedness, (iii) the actual Unpaid Company Transaction Expenses, (iv) the actual Closing Cash, (v) the actual Closing Taxes and (vi) a calculation of the Merger Consideration, which in each case prepared in accordance with Section 2.3(f). If Parent fails to deliver the Closing Statement by the Post-Closing Deadline, then the Merger Consideration shall include Parent's determinations not be further adjusted pursuant to this Section 2.3 unless the Stockholder Representative elects, by written notice delivered to Parent within five Business Days after the Post-Closing Deadline, to retain (at the expense of Closing Working Capital, Closing Cash, Closing Indebtedness Parent and Company Transaction Expenses. Parent will the Surviving Corporation) a nationally recognized independent accounting firm to prepare the Closing Balance Sheet and Closing Statement in accordance with Section 2.3(f), in which case such independent accounting firm shall be instructed to deliver the Closing Balance Sheet and Closing Statement (including making to the Stockholder Representative and Parent within 60 days after the Post-Closing Deadline and the determinations included thereinof such accounting firm will be conclusive and binding on Parent, the Surviving Corporation, the Stockholder Representative, the Company Holders and each of their Affiliates (the “Interested Persons”). Parent shall cause the Company and the Company Subsidiaries to make their financial records available to the Stockholder Representative and its advisors (or such independent accounting firm retained by the Stockholder Representative, as the case may be) utilizing the principles set forth in connection with any review conducted in connection with this Section 2.4(f)2.3. (c) During the 60-day period immediately following the day on which the Stockholder Representative's receipt of Representative receives the Closing Balance Sheet and the Closing Statement, the Stockholder Representative and its representatives and advisors and representatives (i) will be permitted to review, during normal business hours and upon reasonable notice, the Surviving Corporation's ’s and the Company Subsidiaries' ’ books and records and the working papers related to the preparation of the Closing Balance Sheet and the Closing Statement (including the determinations included therein and the audit performed on the Closing Balance Sheettherein), and (ii) will be given reasonable access, during normal business hours and upon reasonable notice, to knowledgeable employees and accounting professionals of Parent Parent, the Surviving Corporation and the Company Subsidiaries in order to facilitate the Stockholder Representative's ’s review of the Closing Balance Sheet and the Closing Statement; provided provided, however, that the review and access described in clauses (i) and (ii) will be conducted at times and in a manner that does not unreasonably interfere with the operation of Parent's’s, the Surviving Corporation's ’s or the Company Subsidiaries' ’ respective businesses. The Closing Balance Sheet and the Closing Statement (including the determinations included therein) will become final, binding and conclusive upon Parent and the Junior Stockholders Interested Persons on the earlier of (A) on the 60th day following the date on which the Stockholder Representative's receipt thereof, Representative receives them unless Parent receives from the Stockholder Representative prior to such 60th day a written notice (a "Dispute Notice") of from the Stockholder Representative's objection to Representative setting forth all of its disagreements with any account or determination set forth in the Closing Balance Sheet or the Closing Statement (the magnitude “Disputed Items”) together with an explanation for each Disputed Item in reasonable detail and its proposed adjustments with respect to each Disputed Item to the extent reasonably practicable in light of which the information then available to the Stockholder Representative will use reasonable efforts to quantify(the “Dispute Notice”) or and (B) the date on such earlier date as which the Stockholder Representative notifies Parent in writing that it does not dispute the Closing Balance Sheet and Closing Statement. Any Dispute Notice will specify in reasonable detail ; provided, however, that notwithstanding the nature and dollar amount of any disagreement so asserted (collectively, foregoing if the "Disputed Items"). The Stockholder Representative may dispute any amounts reflected on is entitled and elects to retain an independent accounting firm pursuant to Section 2.3(b) then the Closing Balance Sheet or and the Closing StatementStatement (including the determinations included therein) prepared by such independent accounting firm will become final, but only binding and conclusive upon the Interested Persons when delivered to correct mathematical errors or on the basis that such amounts were not determined in accordance with Section 2.4(f) hereofStockholder Representative and Parent. Any account or determination If a Dispute Notice is given, then any item set forth or reflected on the Closing Balance Sheet or the Closing Statement that is not specifically objected to in the Dispute Notice a Disputed Item will be deemed final, binding and conclusive upon Parent, the Junior Stockholders, Interested Persons from and after the Stockholder Representative upon delivery of the Dispute Notice. If the Stockholder Representative timely delivers a the Dispute Notice, then the determination of Closing Balance Sheet and Closing Statement (including the Merger Consideration determinations included therein) will become final, binding and conclusive upon Parent, the Junior Stockholders and the Stockholder Representative Interested Persons on the first to occur of (x) the date on which Parent and the Stockholder Representative resolve agree in writing all differences they have with respect to the resolution of all the Disputed Items or (y) the first date on which all of the Disputed Items that are not resolved by the written agreement of Parent and the Stockholder Representative in writing are or finally resolved in writing by the Independent Accountants in accordance with Section 2.4(d2.3(d). (d) During the 30 days following delivery of a after the date on which Parent receives the Dispute Notice, Parent and the Stockholder Representative will seek in good faith to resolve in writing by written agreement any differences which they have with respect to the Disputed Items. Any Items and any Disputed Item so resolved in writing by Parent and the Stockholder Representative will be deemed final, binding and conclusive on Parent, upon the Junior Stockholders and the Stockholder RepresentativeInterested Persons. If Parent and the Stockholder Representative do not reach written agreement on the resolution of all of the Disputed Items during such 30-day period (or such longer period as they shall mutually agree), then at the end of such 30-day (or longer) period Parent and the Stockholder Representative shall submit all unresolved Disputed Items (collectively, the "“Unresolved Items"”) to a Deloitte & Touche LLP or such other nationally recognized firm of independent certified public accountants with a nationwide audit and accounting practice and that is selected by mutual agreement of as Parent and the Stockholder Representative) Representative may agree in writing (the "“Independent Accountants"”) to and the Independent Accountants shall review and resolve such mattersall of the Unresolved Items. The Independent Accountants will determine each Unresolved Item (the amount of which may not be more favorable to Parent than the related amount reflected in the Closing Statement nor more favorable to the Stockholder Representative and the Junior Stockholders than the related amount set forth in the Dispute Notice) in accordance with this Section 2.4(d2.3(d) and Section 2.4(f2.3(f) as promptly as may be reasonably practicable, and Parent and the Stockholder Representative will instruct the Independent Accountants to endeavor to complete such process within a period of no more than 45 60 days; provided, however, that notwithstanding the foregoing if any such determination of any Unresolved Item is more favorable to Parent than the related amount specified by the Parent in the Closing Statement, or more favorable to the Company Holders than any related amount specified by the Stockholder Representative in the Dispute Notice, then such Unresolved Item shall be deemed to be such related amount specified by Parent or the Stockholder Representative, as applicable, for all purposes of this Agreement. The Independent Accountants may conduct such proceedings shall act as an expert and not as an arbitrator to resolve each Unresolved Item based solely on the Independent Accountants believeprovisions of this Agreement, in GAAP and the written presentations made by Parent and the Stockholder Representative and their sole discretionrespective agents, will assist in the determination of the Unresolved Items; provided that, except and not by independent review. Except as Parent and the Stockholder Representative may otherwise agree in writing, all communications between Parent and the Stockholder Representative or any of their respective representatives, on the one hand, and the Independent Accountants, on the other hand, will be in writing writing, with copies simultaneously delivered to the non-communicating party. The Independent Accountants' ’ determination of the Unresolved Items will be final, binding and conclusive on Parent, the Junior Stockholders and the Stockholder RepresentativeInterested Parties, effective as of the date the Independent Accountants' ’ written determination is received by Parent and the Stockholder Representative. The fees and expenses of the Independent Accountants will be borne one-half by Parent and one-half by the Stockholder Representative (for the account of the Junior Stockholders)Representative, and each of Parent and the Stockholder Representative (for the account of the Junior Stockholders) will bear its own legal, accounting and other fees and expenses of participating in such dispute resolution procedure. (e) Upon final determination of the Merger Consideration Closing Working Capital, Closing Indebtedness, Unpaid Company Transaction Expenses, Closing Cash and Closing Taxes pursuant to Section 2.4(c2.3(b), (c) or Section 2.4(d(d), as applicable, an adjustment will be determined and paid as follows: (i) If the estimated amount of the Estimated Merger Consideration as set forth in the Price Certificate (the "Estimated Merger Consideration") exceeds the Merger Consideration as finally determined pursuant to Section 2.4(c) or Section 2.4(d) hereof(based on such final determination), the Stockholder Representative and Parent shall within five (5) Business Days of the after such final determination of the Merger Consideration issue joint written instructions directing the Post-Closing Escrow Agent to pay to Parent the amount of such excess together with interest thereon from the Closing Date to the payment date at the rate of 2% per annum (collectively, the “Excess Amount”) out of the Post-Closing Adjustment Escrow Fund by wire transfer of immediately available funds to the account specified by Parent (the “Parent Account”), and to pay to the Stockholder Representative (on behalf of the Company Holders) the remaining amount, if any, of the Adjustment Escrow , by wire transfer of immediately available funds to the account specified by the Stockholder Representative. If the Excess Amount is greater than the amount in the Adjustment Escrow, then the Stockholder Representative and Parent shall issue joint written instructions directing the Escrow Agent to pay to Parent out of the Indemnity Escrow the amount by which the Excess Amount exceeds the amount in the Adjustment Escrow (up to the amount in the Indemnity Escrow) by wire transfer of immediately available funds to the Parent Account. Any amount payable to Parent pursuant to this Section 2.3(e)(i) will be paid within five (5) Business Days of such final determination by wire transfer of immediately available funds to the account specified by Parent. (ii) If the Merger Consideration, as finally determined pursuant to Section 2.4(cConsideration (based on such final determination) or Section 2.4(d) hereof, exceeds the Estimated Merger Consideration, Parent will pay to the Stockholder Representative (on behalf of the Junior StockholdersCompany Holders) an amount equal to such excess together with interest thereon from the Closing Date to the payment date at the rate of 2% per annum, and the Stockholder Representative and Parent shall issue joint written instructions to the Escrow Agent to pay the amount of such excessthe Adjustment Escrow to the Stockholder Representative (on behalf of the Company Holders). Any amount payable by Parent to the Stockholder Representative pursuant to this Section 2.4(e)(ii2.3(e)(ii) will be paid within five (5) Business Days of the such final determination of the Merger Consideration by wire transfer of immediately available funds to the account specified by the Stockholder Representative. Any amount paid to Parent pursuant to clause (e)(i) or to the Stockholder Representative pursuant to clause (e)(ii) (other than interest on the Adjustment Escrow paid to the Stockholder Representative pursuant to clause (ii) above) will be deemed to constitute an adjustment to the Merger Consideration. (f) For the purposes of Section 2.3 and this Section 2.42.3, each accounting term used herein will have the meaning that is applied thereto in accordance with GAAP as in effect on of the Balance Sheet Date date of this Agreement and, to the extent consistent with GAAP as in effect on the Balance Sheet Datesuch GAAP, the accounting principles, policies, procedures and methodologies applied in preparing the Interim Audited Financial Statements as of, and for the year ending on, the Balance Sheet and the accompanying statement of incomeDate. Each account included in the Price CertificateThe Closing Balance Sheet, the Closing Statement Working Capital, the Closing Indebtedness, the Unpaid Company Transaction Expenses, the Closing Cash and the Closing Balance Sheet Taxes will be calculated (A) calculated in accordance with GAAP as in effect on the Balance Sheet Date, date of this Agreement and, to the extent consistent with GAAP as in effect on the Balance Sheet Datesuch GAAP, utilizing the accounting principles, policies, procedures and methodologies applied in preparing the Company Audited Financial Statements (without regard to materiality)as of, and for the year ending on, the Balance Sheet Date, including without limitation with respect to the nature or classification of accounts, accounts and determining levels of reserves or levels of accruals; and (B) consistent with based on the books and records of the Company and the Company Subsidiaries and the definitions hereinherein agreed; provided, however, that notwithstanding the foregoing, any errors or omissions in determining current assets such books and liabilities hereunderrecords, (i) all accounting entries the Closing Statement or the computations set forth therein shall be taken into account corrected regardless of their amount and all known errors and omissions shall be corrected, (ii) all known proper adjustments shall be made, (iii) appropriate reserves for all known and quantifiable liabilities and obligations for which reserves are appropriate in accordance with GAAP as in effect on the Balance Sheet Date shall be included, and (iv) such reserves may not be reversed materiality or reduced except to reflect changes in facts and circumstances after the date hereofamount.

CALCULATION OF MERGER CONSIDERATION. (a) Not fewer than five three Business Days prior to the Closingdate hereof, the president or chief financial officer of the Company shall deliver delivered to Parent a certificate statement (the “Estimate Statement”) setting forth the Company's ’s good faith estimates of the amounts of the Closing Working Capital, the Net Closing Cash, Closing Indebtedness, Indebtedness and the Series C Preferred Redemption Amount, Unpaid Company Transaction Expenses Expenses, and the adjustment to be made pursuant to Section 2.3(b), together with an estimated consolidated balance sheet of the Company and the Company Subsidiaries as of the Adjustment Time, and a calculation amount of the Merger Consideration (the “Estimated Merger Consideration”) based on the foregoing estimates (the "Price Certificate")estimates. The Price Certificate shall Estimate Statement also include included the Sellers’ Expense Amount and the Company's ’s determination of the Series C Preferred Per estimated Closing Date Share Amount based on the Estimated Merger Consideration, the Indemnity Amount, the Adjustment Amount and the Applicable Per Share Amount for each class Sellers’ Expense Amount, together with the aggregate number of outstanding shares of Common Stock and series the aggregate number of Junior Common Stock based on Equivalents (and the foregoing estimate of aggregate exercise prices thereof) used in the Merger Considerationdetermination thereof. The Company will prepare has provided to Parent prompt notice and the Price Certificate (including making details of any exercise of Common Stock Equivalents that occurred following the calculation of any amounts included in the Estimate Statement and prior to the Effective Time. To the extent any Common Stock Equivalents have been exercised following Parent’s receipt of the Estimate Statement, the Estimated Merger Consideration shall be adjusted to give effect to the actual number of Common Stock Equivalents outstanding immediately prior to the Effective Time rather than the number of Common Stock Equivalents estimated determinations included therein) utilizing to be outstanding immediately prior to the principles set forth Effective Time in Section 2.4(f)the Estimate Statement. (b) No later than the 90th day after the Closing Date, Parent will prepare and deliver deliver, or cause to be prepared and delivered, to the Stockholder Shareholder Representative a consolidated balance sheet of the Company and the Company Subsidiaries as of the Adjustment Time (the "“Closing Balance Sheet"”), together with a statement (the "“Closing Statement"”) setting forth Parent's ’s determination of (i) the actual Closing Working Capital as of the Adjustment Time, (ii) the actual Net Closing Indebtedness as of the Adjustment Time, and (iii) the actual Unpaid Company Transaction Expenses as of the Effective Time. The Closing Statement shall also include the Company’s determination of the amount Merger Consideration and the Closing Date Share Amount, based on the Indemnity Amount, the Adjustment Amount and the Sellers’ Expense Amount, together with the aggregate number of outstanding shares of Common Stock and the Merger Consideration, which shall include Parent's determinations aggregate number of Closing Working Capital, Closing Cash, Closing Indebtedness Common Stock Equivalents (and Company Transaction Expensesaggregate exercise prices thereof) used in the determination thereof. Parent will prepare prepare, or cause to be prepared, the Closing Balance Sheet and the Closing Statement (including making the determinations included therein) utilizing the principles set forth in accordance with Section 2.4(f2.3(f). (c) During the 60-day period immediately following the Stockholder Shareholder Representative's ’s receipt of the Closing Balance Sheet and the Closing StatementStatement (provided that, if Parent fails to deliver the Closing Balance Sheet and the Closing Statement within the 90-day period described in Section 2.3(b), then at the written election of the Shareholder Representative the Estimate Statement will be treated as the Closing Balance Sheet and the Closing Statement for purposes of this Section 2.3), the Stockholder Shareholder Representative and its representatives and advisors and representatives (i) will be permitted to review, during normal business hours and upon reasonable notice, the Surviving Corporation's ’s and the Company Subsidiaries' ’ books and records and the their and their outside accountants working papers related or relevant to the preparation of the Closing Balance Sheet and the Closing Statement (including the determinations included therein and the audit performed on the Closing Balance Sheettherein), and (ii) will be given reasonable access, during normal business hours and upon reasonable prior notice, to knowledgeable employees and accounting professionals of Parent Parent, the Surviving Corporation and the Company Subsidiaries in order to facilitate the Stockholder Shareholder Representative's ’s review of the Closing Balance Sheet and the Closing Statement; provided provided, however, that the review and access described in clauses (i) and (ii) will be conducted at times and in a manner that does not unreasonably interfere with the operation of Parent's’s, the Surviving Corporation's ’s or the Company Subsidiaries' ’ respective businesses. The Closing Balance Sheet and the Closing Statement (including the determinations included therein) will become final, binding and conclusive upon Parent Parent, the Surviving Corporation, the Shareholder Representative and the Junior Stockholders Company Holders (the “Interested Persons”) (A) on the 60th day following the Stockholder Shareholder Representative's ’s receipt thereof, unless Parent receives from the Stockholder Shareholder Representative on or prior to such 60th day written notice of the Shareholder Representative’s disagreement (a "the “Dispute Notice"”) of the Stockholder Representative's objection to with any account or determination set forth in the Closing Balance Sheet or the Closing Statement (the magnitude of which the Stockholder Representative will use reasonable efforts to quantify) or (B) on such earlier date as the Stockholder Shareholder Representative notifies Parent that it does not dispute the Closing Balance Sheet and Closing Statement; provided that, if Parent shall have failed to timely deliver the Closing Balance Sheet and Closing Statement under Section 2.3(b), the 60th day referred to in clause (A) above shall refer to the 60th day after the same was due to be delivered. Any The Dispute Notice will specify the items in reasonable detail the nature Closing Balance Sheet and dollar amount of any disagreement so asserted the Closing Statement disputed by the Shareholder Representative (collectively, the "“Disputed Items"”). The Stockholder Representative may dispute any amounts reflected on the Closing Balance Sheet or Closing Statement, but only to correct mathematical errors or on the basis that such amounts were not determined in accordance with Section 2.4(f) hereof. Any account or determination item set forth or reflected on the Closing Balance Sheet or the Closing Statement that is not specifically objected to in the Dispute Notice will be deemed final, binding and conclusive upon Parent, the Junior Stockholders, and the Stockholder Representative Interested Persons upon delivery of the Dispute Notice. If the Stockholder Shareholder Representative timely delivers a the Dispute Notice, then the determination of the Merger Consideration Closing Balance Sheet and Closing Statement will become final, binding and conclusive upon Parent, the Junior Stockholders and the Stockholder Representative Interested Persons on the first to occur of (x) the date on which Parent and the Stockholder Shareholder Representative resolve in writing all differences they have with respect to the Disputed Items or (y) the date on which all of the Disputed Items that are not resolved by Parent and the Stockholder Shareholder Representative in writing are finally resolved in writing by the Independent Accountants in accordance with Section 2.4(d2.3(d). (d) During the 30 days following delivery of a Dispute Notice, Parent and the Stockholder Shareholder Representative will seek in good faith to resolve in writing any differences which they have with respect to the Disputed Items. Any Disputed Item resolved agreed in writing by Parent and the Stockholder Shareholder Representative will be deemed final, binding and conclusive on Parent, the Junior Stockholders Interested Persons when such written agreement has been entered into by each of Parent and the Stockholder Shareholder Representative. If Parent and the Stockholder Shareholder Representative do not reach agreement on all of the Disputed Items during such 30-day period (or such longer period as they shall mutually agree), then at the end of such 30-day (or longer) period Parent and the Stockholder Shareholder Representative shall submit all unresolved Disputed Items (collectively, the "“Unresolved Items"”) to a nationally recognized firm of independent certified public accountants with a nationwide audit and accounting practice and that is selected by mutual agreement of Parent and the Stockholder Representative) Deloitte LLP (the "“Independent Accountants"”) to review and resolve such matters. The Independent Accountants will determine each Unresolved Item (the amount of which may not be more favorable to Parent than the related amount reflected in the Closing Statement nor more favorable to the Stockholder Shareholder Representative and the Junior Stockholders Company Holders than the any related amount set forth in the Dispute Notice) in accordance with this Section 2.4(d2.3(d) and Section 2.4(f2.3(f) as promptly as may be reasonably practicable, and Parent and the Stockholder Shareholder Representative will instruct the Independent Accountants to endeavor to complete such process within a period of no more than 45 days60 days from the date of its engagement. The Independent Accountants may conduct such proceedings shall act as an arbitrator to resolve each Unresolved Item based solely on written presentations by Parent and the Independent Accountants believeShareholder Representative and their respective agents, in their sole discretion, will assist in the determination of the Unresolved Items; provided that, except and not by independent review. Except as Parent and the Stockholder Shareholder Representative may otherwise agree in writing, all communications between Parent and the Stockholder Shareholder Representative or any of their respective representatives, on the one hand, and the Independent Accountants, on the other hand, will be in writing writing, with copies simultaneously delivered to the non-communicating party. The Independent Accountants' ’ determination of the Unresolved Items will be final, binding and conclusive on Parent, the Junior Stockholders Company Holders and the Stockholder Shareholder Representative, effective as of the date the Independent Accountants' ’ written determination is received by Parent and the Stockholder Shareholder Representative. The fees and expenses of the Independent Accountants will be borne one-half by Parent and one-half by the Stockholder Shareholder Representative (for the account of the Junior StockholdersCompany Holders), and each of Parent and the Stockholder Shareholder Representative (for the account of the Junior StockholdersCompany Holders) will bear its own legal, accounting and other fees and expenses of participating in such dispute resolution procedure. (e) Upon final determination of the Merger Consideration pursuant to Section 2.4(c2.3(c) or Section 2.4(d(d), as applicable, an adjustment will be determined and paid as follows: (i) If the estimated amount of the Estimated Merger Consideration as set forth in the Price Certificate (the "Estimated Merger Consideration") exceeds the Merger Consideration as finally determined pursuant to Section 2.4(c) or Section 2.4(d) hereofConsideration, the Stockholder Shareholder Representative and Parent shall within five (5) Business Days of the after such final determination of the Merger Consideration issue joint written instructions directing the Post-Closing Escrow Agent to (x) pay to Parent the amount of such excess (or, if less, the entire amount of the Adjustment Escrow) out of the Post-Closing Adjustment Escrow, by wire transfer of immediately available funds to the account specified by Parent, (y) pay to the Shareholder Representative (on behalf of the Company Holders) the remaining amount, if any, of the Adjustment Escrow Fund (reduced by the amount provided for in Section 2.2(b)(iii) with respect to any Dissenting Shares, which amount shall instead be paid to Parent in the same method as specified in clause (x) above), by wire transfer of immediately available funds to the account specified by the Shareholder Representative, and (z) if the Estimated Merger Consideration exceeds the Merger Consideration by an amount that is greater than the amount of the Adjustment Escrow, pay the portion of such excess not paid from the Adjustment Escrow pursuant to clause (x) above to Parent from the Indemnity Escrow, by wire transfer of immediately available funds to the account specified by Parent. (ii) If the Merger Consideration, as finally determined pursuant to Section 2.4(c) or Section 2.4(d) hereof, Consideration exceeds the Estimated Merger Consideration, then within five Business Days after such final determination, Parent will pay to the Stockholder Shareholder Representative (on behalf of the Junior StockholdersCompany Holders) the amount of such excess. Any excess (reduced by the amount payable by Parent pursuant provided for in Section 2.2(b)(iii) with respect to this Section 2.4(e)(iiany Dissenting Shares) will be paid within five (5) Business Days of the final determination of the Merger Consideration by wire transfer of immediately available funds to the account specified by the Stockholder Shareholder Representative, and the Shareholder Representative and Parent shall issue joint written instructions to the Escrow Agent to pay the amount of the Adjustment Escrow to the Shareholder Representative (on behalf of the Company Holders) (reduced by the amount provided for in Section 2.2(b)(iii) with respect to any Dissenting Shares, which amount shall instead be paid to Parent in the same method as specified in clause (i)(x) above). (f) For the purposes of Section 2.3 and Except as otherwise specified in this Section 2.4Agreement, each accounting term used herein will have the meaning that is applied thereto in accordance with GAAP as in effect on the Balance Sheet Date and, to the extent consistent with GAAP as in effect on the Balance Sheet DateGAAP, the accounting principles, policies, procedures and methodologies consistently applied in preparing the Interim consolidated balance sheet of the Company and the Company Subsidiaries as of the Balance Sheet Date and the accompanying statement of incomeincome (“Company GAAP”). Each account Except as otherwise provided in this Agreement, each amount included in the Price CertificateEstimate Statement, the Closing Statement and the Closing Balance Sheet will be (A) calculated in accordance with Company GAAP as in effect on the Balance Sheet Date, and, to the extent consistent with GAAP as in effect on the Balance Sheet Date, utilizing the accounting principles, policies, procedures and methodologies applied in preparing the Company Financial Statements (without regard to materiality), including with respect to the nature or classification of accounts, and determining levels of reserves or levels of accruals, and the definitions for such amount (and the components of such amount) herein agreed; and (B) consistent with the books and records of the Company and the Company Subsidiaries and the definitions hereinSubsidiaries; providedprovided that, that except as otherwise provided in this Agreement, in determining current assets and liabilities hereunder, (i) all accounting entries shall be taken into account regardless of their amount and all known errors and omissions shall be corrected. (g) Notwithstanding anything contained in this Agreement to the contrary, (ii) all known proper adjustments shall but subject to the rights of the parties to seek specific performance of this Section 2.3 under Section 8.9, this Section 2.3 sets forth the sole remedy of Parent and Merger Sub in respect of any Damages related to any asset or liability accounted for, or intended to be madeaccounted for, (iii) appropriate reserves for all known and quantifiable liabilities and obligations for which reserves are appropriate in accordance with GAAP as in effect on the Balance Sheet Date shall be includedcalculation of Closing Working Capital, Net Closing Indebtedness or Unpaid Company Transaction Expenses, and (iv) such reserves may Parent and Merger Sub shall not be reversed entitled to indemnification under Article VII or reduced except any other recovery for any such Damages in respect thereof, whether or not the underlying facts constitute a breach of this Agreement; provided, however, that nothing contained in this Section 2.3(g) shall limit, restrict or negate Parent’s or Merger Sub’s right to reflect changes indemnification for Damages arising out of or resulting from or in facts connection with a breach of the representations and circumstances after warranties of the date hereofCompany set forth herein or a breach of the Company’s covenants set forth herein (including any such breach of representation or warranty or breach of covenant resulting from or relating to any such underlying facts) unless such Damages are included in the calculation of Merger Consideration as finally determined pursuant to Section 2.3(c) or Section 2.3(d), as applicable.

CALCULATION OF MERGER CONSIDERATION. (a) Not fewer less than five Business Days three (3) days prior to the ClosingClosing Date, the president or chief financial officer of the Company shall deliver to Parent the Purchaser the following by way of a certificate setting forth Funds Flow Memorandum in substantially the form attached hereto as Schedule I: (i) the Company's ’s portion of the Company’s reasonable good faith estimates estimate of the amounts amount Cash of Closing Working Capital, Closing Cash, Closing Indebtedness, the Series C Preferred Redemption Amount, Company Transaction Expenses OCW and the adjustment to be made pursuant to Section 2.3(b), together with an estimated consolidated balance sheet of the Company and the Company its Subsidiaries as of the Adjustment Time, and a calculation Closing Date (the “Estimated Closing Cash”); (ii) the Company’s portion of the Merger Consideration based on outstanding balance of any Indebtedness of OCW and its Subsidiaries as of the foregoing estimates Closing Date, as calculated pursuant to appropriate payoff letters from the holders of such Indebtedness, such payoff letters to be provided to Purchaser (the "Price Certificate"“Closing Indebtedness”). The Price Certificate shall also include ; and (iii) the Company's determination ’s portion of any and all Transaction Expenses incurred by OCW and its Subsidiaries that remain outstanding as of the Series C Preferred Per Share Amount and Closing Date, as calculated pursuant to proper invoices representing such Transaction Expenses, such invoices to be provided to Purchaser (the Applicable Per Share Amount for each class and series of Junior Stock based on the foregoing estimate of the Merger Consideration. The Company will prepare the Price Certificate (including making the estimated determinations included therein) utilizing the principles set forth in Section 2.4(f“Closing Transaction Expenses”). (b) No later than the 90th day after On the Closing Date, Parent will prepare and deliver the Merger Consideration to be delivered by Purchaser to Stockholders (or delivered pursuant to the Stockholder Representative a consolidated balance sheet terms of the Company Computershare Escrow Agreement) in accordance with Section 1.03 shall be a number of Class A Shares equal to the quotient of (A) the sum of $103,093,670 plus the Estimated Closing Cash minus the amount of each of the Closing Indebtedness and the Company Subsidiaries Closing Transaction Expenses and (B) a price per share equal to the ten (10) day volume-weighted average price of the Purchaser’s shares as traded on the New York Stock Exchange determined as of the Adjustment Time Effective Date ($314.60) (the "Closing Balance Sheet"), together with a statement (the "Closing Statement") setting forth Parent's determination of the amount of the Merger Consideration, which shall include Parent's determinations of Closing Working Capital, Closing Cash, Closing Indebtedness and Company Transaction Expenses. Parent will prepare the Closing Balance Sheet and the Closing Statement (including making the determinations included therein) utilizing the principles set forth in Section 2.4(f“Signing Date Share Price”). (c) During Within fifteen (15) days after the 60-day period immediately following Closing Date, a representative of Stockholders shall deliver to the Stockholder Representative's receipt Purchaser a final amount of Cash of the Company and its Subsidiaries as of the Closing Balance Sheet and Date (the “Final Closing Statement, the Stockholder Representative and its advisors and representatives (i) will be permitted to review, during normal business hours and upon reasonable notice, the Surviving Corporation's and the Company Subsidiaries' books and records and the working papers related Cash”). Such representative shall also provide to the preparation of the Closing Balance Sheet Purchaser such data and the Closing Statement (including the determinations included therein and the audit performed on the Closing Balance Sheet), and (ii) will be given reasonable access, during normal business hours and upon reasonable notice, to knowledgeable employees and accounting professionals of Parent in order to facilitate the Stockholder Representative's review of the Closing Balance Sheet and the Closing Statement; provided that the review and access described in clauses (i) and (ii) will be conducted at times and in a manner that does not unreasonably interfere with the operation of Parent's, the Surviving Corporation's or the Company Subsidiaries' respective businesses. The Closing Balance Sheet and the Closing Statement (including the determinations included therein) will become final, binding and conclusive upon Parent and the Junior Stockholders (A) on the 60th day following the Stockholder Representative's receipt thereof, unless Parent receives from the Stockholder Representative prior to such 60th day written notice (a "Dispute Notice") of the Stockholder Representative's objection to any account or determination set forth in the Closing Balance Sheet or the Closing Statement (the magnitude of which the Stockholder Representative will use reasonable efforts to quantify) or (B) on such earlier date information as the Stockholder Representative notifies Parent that it does not dispute the Closing Balance Sheet and Closing Statement. Any Dispute Notice will specify Purchaser may reasonably request in reasonable detail the nature and dollar amount of any disagreement so asserted (collectively, the "Disputed Items"). The Stockholder Representative may dispute any amounts reflected on the Closing Balance Sheet or Closing Statement, but only to correct mathematical errors or on the basis that such amounts were not determined in accordance connection with Section 2.4(f) hereof. Any account or determination set forth or reflected on the Closing Balance Sheet or the Closing Statement that is not specifically objected to in the Dispute Notice will be deemed final, binding and conclusive upon Parent, the Junior Stockholders, and the Stockholder Representative upon delivery of the Dispute Notice. If the Stockholder Representative timely delivers a Dispute Notice, then the determination of the Merger Consideration will become final, binding and conclusive upon Parent, Final Closing Cash. The Purchaser shall notify such representative of the Junior Stockholders and Purchaser’s acceptance or dispute of such statement within five (5) days after the Stockholder Representative on Purchaser’s receipt of such statement. In the first to occur event of (x) the date on which Parent and the Stockholder Representative resolve in writing all differences they have a dispute with respect to the Disputed Items or (y) the date on which all determination of the Disputed Items that are not resolved by Parent Final Closing Cash, the Purchaser and the Stockholder Representative in writing are finally resolved in writing representative of Stockholders shall attempt to reconcile their difference and any written agreement by them as to any disputed amounts shall be final, binding, and conclusive on the Independent Accountants in accordance with Section 2.4(d)parties. (d) During the 30 days following delivery of a Dispute Notice, Parent and the Stockholder Representative will seek in good faith to resolve in writing any differences which they have with respect to the Disputed Items. Any Disputed Item resolved in writing by Parent and the Stockholder Representative will be deemed final, binding and conclusive on Parent, the Junior Stockholders and the Stockholder Representative. If Parent and the Stockholder Representative do not reach agreement on all of the Disputed Items during such 30-day period (or such longer period as they shall mutually agree), then at the end of such 30-day (or longer) period Parent and the Stockholder Representative shall submit all unresolved Disputed Items (collectively, the "Unresolved Items") to a nationally recognized firm of independent certified public accountants with a nationwide audit and accounting practice and that is selected by mutual agreement of Parent and the Stockholder Representative) (the "Independent Accountants") to review and resolve such matters. The Independent Accountants will determine each Unresolved Item (the amount of which may not be more favorable to Parent than the related amount reflected in the Closing Statement nor more favorable to the Stockholder Representative and the Junior Stockholders than the related amount set forth in the Dispute Notice) in accordance with this Section 2.4(d) and Section 2.4(f) as promptly as may be reasonably practicable, and Parent and the Stockholder Representative will instruct the Independent Accountants to endeavor to complete such process within a period of no more than 45 days. The Independent Accountants may conduct such proceedings as the Independent Accountants believe, in their sole discretion, will assist in the determination of the Unresolved Items; provided that, except as Parent and the Stockholder Representative may otherwise agree in writing, all communications between Parent and the Stockholder Representative or any of their respective representatives, on the one hand, and the Independent Accountants, on the other hand, will be in writing with copies simultaneously delivered to the non-communicating party. The Independent Accountants' determination of the Unresolved Items will be final, binding and conclusive on Parent, the Junior Stockholders and the Stockholder Representative, effective as of the date the Independent Accountants' written determination is received by Parent and the Stockholder Representative. The fees and expenses of the Independent Accountants will be borne one-half by Parent and one-half by the Stockholder Representative (for the account of the Junior Stockholders), and each of Parent and the Stockholder Representative (for the account of the Junior Stockholders) will bear its own legal, accounting and other fees and expenses of participating in such dispute resolution procedure. (e) Upon final determination of the Merger Consideration pursuant to Section 2.4(c) or Section 2.4(d), an adjustment will be determined and paid as follows: (i) If the estimated amount of the Merger Consideration as set forth in the Price Certificate (the "Estimated Merger Consideration") exceeds the Merger Consideration as finally determined pursuant to Section 2.4(c) or Section 2.4(d) hereof, the Stockholder Representative and Parent shall within five (5) Business Days of the final determination of the Merger Consideration issue joint written instructions directing the Post-Final Closing Escrow Agent to pay to Parent the amount of such excess out of the Post-Closing Escrow Fund by wire transfer of immediately available funds to the account specified by Parent. (ii) If the Merger Consideration, as finally determined pursuant to Section 2.4(c) or Section 2.4(d) hereof, Cash exceeds the Estimated Merger ConsiderationClosing Cash (the “Excess Closing Cash”), Parent will pay the Purchaser shall deliver to each Stockholder its Pro Rata Share of a number of Class A Shares equal to the Stockholder Representative (on behalf quotient of the Junior Stockholders) the amount of such excess. Any amount payable by Parent pursuant to this Section 2.4(e)(ii) will be paid within five (5) Business Days of the final determination of the Merger Consideration by wire transfer of immediately available funds to the account specified by the Stockholder Representative. (f) For the purposes of Section 2.3 and this Section 2.4, each accounting term used herein will have the meaning that is applied thereto in accordance with GAAP as in effect on the Balance Sheet Date and, to the extent consistent with GAAP as in effect on the Balance Sheet Date, the accounting principles, policies, procedures and methodologies applied in preparing the Interim Balance Sheet and the accompanying statement of income. Each account included in the Price Certificate, the Closing Statement and the Closing Balance Sheet will be (A) calculated in accordance with GAAP as in effect on the Balance Sheet Date, and, to the extent consistent with GAAP as in effect on the Balance Sheet Date, utilizing the accounting principles, policies, procedures and methodologies applied in preparing the Company Financial Statements (without regard to materiality), including with respect to the nature or classification of accounts, and determining levels of reserves or levels of accruals; Excess Closing Cash and (B) consistent with the books and records Signing Date Share Price. If the Estimated Closing Cash exceeds the Final Closing Cash (the “Deficit Closing Cash”), the Purchaser shall cancel a number of Class A Shares of each Stockholder equal to its Pro Rata Share of a number of Class A Shares equal to the Company and quotient of (A) the Company Subsidiaries and the definitions herein; provided, that in determining current assets and liabilities hereunder, (i) all accounting entries shall be taken into account regardless of their amount and all known errors and omissions shall be corrected, (ii) all known proper adjustments shall be made, (iii) appropriate reserves for all known and quantifiable liabilities and obligations for which reserves are appropriate in accordance with GAAP as in effect on the Balance Sheet Date shall be included, Deficit Closing Cash and (ivB) such reserves may not be reversed or reduced except to reflect changes in facts and circumstances after the date hereofSigning Date Share Price.