Common use of Cash Payment Determination Clause in Contracts

Cash Payment Determination. (a) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to Seller a statement setting forth in reasonable detail Buyer’s calculation of the Acquired Company Closing Cash, Acquired Company Closing Debt, the Closing Debt-Like Items, the Working Capital Amount, the Working Capital Surplus (if any) and the Working Capital Deficit (if any) and, based on such calculations, Buyer’s calculation of the Cash Payment (such statement, the “Closing Statement”), along with reasonable supporting detail used by Buyer to compute the information set forth therein. (b) For a period of forty-five (45) days after the delivery of the Closing Statement, Buyer shall provide Seller and any accountants or advisors retained by Seller with the reasonable opportunity, during normal business hours, upon reasonable advance notice, to review (and copy) the relevant Books and Records of the Business to the extent used by Buyer in the preparation of, or otherwise reasonably relevant to, the Closing Statement, and to discuss such Books and Records and the Closing Statement with the relevant personnel of Buyer and its Affiliates, in each case to the extent reasonably necessary for, and for the sole purpose of, Seller’s review of the Closing Statement; provided, that the independent accountants of Buyer shall not be obligated to make any work papers available to Seller or its representatives unless and until Seller or such representative has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountants. If Seller has any objections to the Closing Statement, then Seller will deliver to Buyer a written statement (the “Objections Statement”) describing (i) which items on the Closing Statement have not been prepared in accordance with this Agreement, (ii) the basis for Seller’s disagreement with the calculation of such items and (iii) Seller’s proposed dollar amount for each item in dispute, within forty-five (45) days after delivery of the Closing Statement. If Seller notifies Buyer that it accepts the contents of the Earnout Report or if Seller fails to deliver an Objections Statement within such forty-five (45) day period, then the Closing Statement shall be final, binding and non-appealable by the Parties and the Cash Payment set forth therein shall be the Final Cash Payment. If Seller delivers an Objections Statement within such forty-five (45) day period, then Buyer and Seller will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after Buyer has received the Objections Statement, any remaining items and amounts set forth in the Objections Statement which remain in dispute will be resolved by Deloitte LLP pursuant to the terms of a joint engagement by Buyer and Seller, provided that if such accounting firm has a material relationship with either Buyer or Seller or is otherwise unable or unwilling to serve in the requested capacity and Buyer and Seller are unable to agree on the choice of an alternative accounting firm, Buyer and Seller will select a nationally-recognized U.S. accounting firm having no material relationship with either Buyer or Seller by lot (after excluding their respective regular outside accounting firms) (the engaged accountants, the “Accountants”). The Accountants will prepare and deliver a written report to Buyer and Seller and will submit a resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants shall act as an expert, not as an arbitrator, in resolving the unresolved disputes, and the proceeding before the Accountants shall be an expert determination under the Law governing expert determination and appraisal proceedings. The Accountants’ determination of such unresolved disputes shall be based solely on written submissions by Buyer and Seller (and not by independent review), and shall be final and binding upon all Parties; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to Seller than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by Buyer, on the one hand, and Seller, on the other hand, in inverse proportion to the difference between the Final Cash Payment (as determined by the Accountants) and the Cash Payment as calculated by Buyer and Seller in the Closing Statement and Objections Statement, respectively. The Closing Statement shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section 1.8(b), and the Cash Payment set forth in the so-revised Closing Statement shall be the Final Cash Payment. Any objection not specified in the Objections Statement shall be deemed waived by Seller for purposes of determining the Final Cash Payment and without limiting any other right of Seller under this Agreement.

Cash Payment Determination. Within sixty (a) Within ninety (9060) days after the Closing Date, Buyer may, but shall not be required to, prepare and deliver to Seller Representative (a) a statement setting forth in reasonable detail Buyer’s calculation of the Acquired Company Closing Cash, Acquired Company Closing Debt, Working Capital as of the Closing Debt-Like ItemsDate, the Working Capital Deficit, if any, and Debt Amount, Transaction Expenses Balance, the Working Capital Surplus (if any) Representative Expense Fund Amount, and the Working Capital Deficit (if any) and, based on such calculations, Buyer’s calculation of the Cash Payment (such statement, the “Closing Statement”), along with reasonable supporting detail used by Buyer and (b) all records and work papers reasonably necessary, in the determination of Buyer, to compute and verify the information set forth therein. (b) For a period of forty-five (45) days after the delivery of in the Closing Statement, Buyer shall provide Seller and any accountants or advisors retained by Seller with the reasonable opportunity, during normal business hours, upon reasonable advance notice, to review (and copy) the relevant Books and Records of the Business Statement to the extent used by Buyer in the preparation of, or otherwise reasonably relevant to, the Closing Statement, such records and to discuss such Books and Records and the Closing Statement with the relevant personnel of Buyer and its Affiliates, in each case to the extent reasonably necessary for, and for the sole purpose of, Seller’s review of the Closing Statement; provided, that the independent accountants of Buyer shall not be obligated to make any work papers available differ from the ones previously delivered to Seller or its representatives unless and until Seller or such representative has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountantsBuyer. If Seller Representative, on behalf of Sellers, has any objections to the Closing StatementStatement prepared by Buyer, then Seller Representative will deliver to Buyer a detailed written statement (the “Objections Statement”) describing (ia) which items on the Closing Statement have not been prepared in accordance with this Agreement, (iib) the basis for Seller’s Sellers’ disagreement with the calculation of such items items, and (iiic) Seller’s Sellers’ proposed dollar amount for each item in dispute, to Buyer within forty-five thirty (4530) days after delivery of the Closing Statement. If Seller notifies Buyer that it accepts the contents of the Earnout Report or if Seller Representative fails to deliver an Objections Statement within such forty-five thirty (4530) day period, then the Closing Statement shall be final, become final and binding and non-appealable by the Parties and the Cash Payment set forth therein on all Parties. Sellers shall be deemed to have agreed with all amounts and items contained or reflected in the Final Cash PaymentClosing Statement to the extent such amounts or items are not disputed in the Objections Statement. If Seller Representative delivers an Objections Statement within such forty-five thirty (4530) day period, then Sellers and Buyer and Seller will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after Buyer Seller Representative has received the submitted any Objections StatementStatements, any remaining items and amounts set forth in the Objections Statement matters which remain are in dispute will be resolved by Deloitte RSM US LLP pursuant to the terms of a joint engagement by Buyer and Seller, provided that if such accounting firm has a material relationship with either Buyer or Seller or is otherwise unable or unwilling to serve in the requested capacity and Buyer and Seller are unable to agree on the choice of an alternative accounting firm, Buyer and Seller will select a nationally-recognized U.S. accounting firm having no material relationship with either Buyer or Seller by lot (after excluding their respective regular outside accounting firms) (the engaged accountants, the “Accountants”). The Accountants will prepare and deliver a written report to Buyer and Seller Representative and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants shall act as an expert, not as an arbitrator, in resolving the unresolved disputes, and the proceeding before the Accountants shall be an expert determination under the Law governing expert determination and appraisal proceedings. The Accountants’ determination of such unresolved disputes shall be based solely on written submissions by Buyer and Seller (and not by independent review), and shall will be final and binding upon all Parties; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to Seller Sellers than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by Buyer, on the one hand, and Seller, on the other hand, in inverse proportion to the difference between the Final Cash Payment (as determined by the Accountants) and the Cash Payment as calculated by Buyer and Seller in the Closing Statement and Objections Statement, respectively. The Closing Statement shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section 1.8(b), and the Cash Payment set forth in the so-revised Closing Statement shall be the Final Cash Payment. Any objection not specified in the Objections Statement shall be deemed waived by Seller for purposes of determining the Final Cash Payment and without limiting any other right of Seller under this Agreement.Objections

Cash Payment Determination. (a) Within ninety (90) days after the Closing Date, Buyer the Company shall prepare and deliver to Seller the Investor a statement setting forth in reasonable detail Buyerthe Company’s calculation of the Acquired Company Closing Cash, Acquired Company Closing Debt, the Closing Debt-Like Items, the Working Capital Debt Amount, the Working Capital Surplus (and Working Capital Deficit, if any) , and the Working Capital Deficit (Cash Shortfall, if any) , in each case as of the Closing Date and, based on such calculations, Buyer’s calculation of the Cash Payment (such statement, the “Closing Statement”), along with reasonable supporting detail used by Buyer to compute the information set forth therein. (b) For a period of forty-five (45) days after the delivery of the Closing Statement, Buyer shall provide Seller and any accountants or advisors retained by Seller with the reasonable opportunity, during normal business hours, upon reasonable advance notice, to review (and copy) the relevant Books and Records of the Business to the extent used by Buyer in the preparation of, or otherwise reasonably relevant to, the Closing Statement, and to discuss such Books and Records and the Closing Statement with the relevant personnel of Buyer and its Affiliates, in each case to the extent reasonably necessary for, and for the sole purpose of, Seller’s review of the Closing Statement; provided, that the independent accountants of Buyer shall not be obligated to make any work papers available to Seller or its representatives unless and until Seller or such representative has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountants. If Seller the Investor has any objections to the Closing StatementStatement prepared by the Company based on the contention that such Closing Statement was not prepared in accordance with the terms of the Agreement, then Seller the Investor will deliver to Buyer a detailed written statement (the “Objections Statement”) describing (ia) which items on the Closing Statement have not been prepared in accordance with this Agreement, (iib) the basis for Sellerthe Investor’s disagreement with the calculation of such items and (iiic) Sellerthe Investor’s proposed dollar amount for each item in dispute, to the Company within forty-five thirty (4530) days after delivery of the Closing Statement. If Seller notifies Buyer that it accepts the contents of the Earnout Report or if Seller Investor fails to deliver an Objections Statement within such forty-five thirty (4530) day period, then the Closing Statement shall be final, become final and binding and non-appealable by the Parties on all Parties. The Investor and the Cash Payment set forth therein Company shall be deemed to have agreed with all amounts and items contained or reflected in the Final Cash PaymentClosing Statement to the extent such amounts or items are not disputed in the Objections Statement. If Seller the Investor delivers an Objections Statement within such forty-five thirty (4530) day period, then Buyer the Investor and Seller the Company will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after Buyer the Investor has received the submitted any Objections StatementStatements, any remaining items and amounts set forth in the Objections Statement matters which remain are in dispute will be resolved by Deloitte BDO USA, LLP pursuant to the terms of a joint engagement by Buyer and Seller, provided that if such accounting firm has a material relationship with either Buyer or Seller or is otherwise unable or unwilling to serve in the requested capacity and Buyer and Seller are unable to agree on the choice of an alternative accounting firm, Buyer and Seller will select a nationally-recognized U.S. accounting firm having no material relationship with either Buyer or Seller by lot (after excluding their respective regular outside accounting firms) (the engaged accountants, the “Accountants”). The Accountants will prepare and deliver a written report to Buyer the Investor and Seller the Company and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants shall act as an expert, not as an arbitrator, in resolving the unresolved disputes, and the proceeding before the Accountants shall be an expert determination under the Law governing expert determination and appraisal proceedings. The Accountants’ determination of such unresolved disputes shall be based solely on written submissions by Buyer and Seller (and not by independent review), and shall be final and binding upon all PartiesParties and not subject to review by a court or other tribunal; provided, however, that no such determination shall be any more favorable to Buyer the Company than is set forth in the Closing Statement or any more favorable to Seller the Investor than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by Buyerthe Party whose calculation of the Cash Payment has the greatest difference from the Final Cash Payment as determined by the Accountants under this Section 1.5; otherwise, such costs, fees and expenses shall be borne equally by the Investor, on the one hand, and Sellerthe Company, on the other hand, in inverse proportion to the difference between the Final Cash Payment (as determined by the Accountants) and the Cash Payment as calculated by Buyer and Seller in the . The final Closing Statement and Objections Statement, respectively. The Closing Statement shall be revised as appropriate to reflect the resolution of any objections thereto however determined pursuant to this Section 1.8(b)1.5, will produce the Working Capital Deficit, if any, the Cash Shortfall, if any, and the Debt Amount to be used to determine the final Cash Payment set forth in (the so-revised Closing Statement shall be the “Final Cash Payment. Any objection not specified in the Objections Statement shall be deemed waived by Seller for purposes of determining the Final Cash Payment and without limiting any other right of Seller under this Agreement”).

Cash Payment Determination. (a) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to Seller the Representative (a) a statement setting forth in reasonable detail Buyer’s good faith calculation of the Acquired Company Closing Cash, Acquired Company Closing Debt, the Closing Debt-Like Items, (i) the Working Capital Amount, and the Working Capital Surplus (or Working Capital Deficit, if any, (ii) the Cash Amount, (iii) the amount of Funded Debt, (iv) the Transaction Expense Amount, and the Working Capital Deficit (if anyv) and, based on such calculationsthe amounts set forth in clauses (i) through (iv), Buyer’s calculation of the Cash Payment (such statement, the “Closing Statement”), along with reasonable supporting detail used by Buyer ) and (b) all records and work papers reasonably necessary to compute and verify the information set forth therein. (b) For a period of forty-five (45) days after in the Closing Statement. The Closing Statement shall be prepared by Buyer in accordance with the Accounting Methodologies. After delivery of the Closing Statement, Buyer the Representative and its accountants shall provide Seller and any accountants or advisors retained by Seller with the be permitted to make reasonable opportunity, during normal business hours, upon reasonable advance notice, to review (and copy) the relevant Books and Records of the Business to the extent used by Buyer in the preparation of, or otherwise reasonably relevant to, the Closing Statement, and to discuss such Books and Records and the Closing Statement with the relevant personnel inquiries of Buyer and its Affiliates, accountants regarding questions concerning or disagreements with the Closing Statement arising in each case to the extent reasonably necessary forcourse of their review thereof, and for Buyer shall, and shall cause the sole purpose ofCompany, Seller’s its Subsidiaries and their respective officers, employees, consultants, accountants and agents to (x) reasonably cooperate with the Representative and its accountants in connection with its review of the Closing Statement; providedStatement and the preparation of the Objection Statement and (y) provide any books, that records and other information reasonably requested by the independent Representative and its accountants of Buyer shall not be obligated to make in connection therewith or in connection with resolving any work papers available to Seller or its representatives unless and until Seller or such representative has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountantsObjection Dispute. If Seller Buyer does not deliver the Closing Statement to the Representative on or prior to the ninetieth (90th) day following the Closing Date, then the estimated amounts as delivered by the Company pursuant to Section 1.03 shall be final, binding and non-appealable by the Parties, and the Estimated Cash Payment shall be deemed to be the Cash Payment. If the Representative has any objections to the Closing Statement, then Seller will the Representative shall deliver to Buyer a written statement (an “Objection Statement”) setting forth its disputes or objections (the “Objections StatementObjection Disputes”) describing (i) which items on to the Closing Statement have not been prepared in accordance with this Agreementand, (ii) to the basis for Seller’s disagreement with extent practical, the calculation of such items and (iii) SellerRepresentative’s proposed dollar amount for resolution of each item in dispute, such Objection Dispute. If an Objection Statement is not delivered to Buyer within forty-five (45) days after delivery of the Closing Statement. If Seller notifies Buyer that it accepts the contents of the Earnout Report or if Seller fails to deliver an Objections Statement within such forty-five (45) day period, then the Closing Statement as originally delivered by Buyer shall be final, binding and non-appealable by the Parties and the Cash Payment set forth therein shall be the Final Cash PaymentParties. If Seller delivers an Objections Objection Statement within such forty-five (45) day periodis timely delivered, then Buyer and Seller will use commercially reasonable efforts the Representative shall negotiate in good faith to resolve any such disputesObjection Disputes, but if they do not reach a final resolution is not obtained within thirty (30) days after Buyer has received the Objections Statement, any remaining items and amounts set forth in the Objections Statement which remain in dispute will be resolved by Deloitte LLP pursuant to the terms of a joint engagement by Buyer and Seller, provided that if such accounting firm has a material relationship with either Buyer or Seller or is otherwise unable or unwilling to serve in the requested capacity and Buyer and Seller are unable to agree on the choice of an alternative accounting firm, Buyer and Seller will select a nationally-recognized U.S. accounting firm having no material relationship with either Buyer or Seller by lot (after excluding their respective regular outside accounting firms) (the engaged accountants, the “Accountants”). The Accountants will prepare and deliver a written report to Buyer and Seller and will submit a resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted delivery of the Objection Statement, the Representative and Buyer shall submit each unresolved Objection Dispute to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (the Accountants“Independent Auditor”) to resolve such Objection Disputes. The Accountants Independent Auditor shall act as an expert, not as an arbitratorbe instructed to set forth a procedure to provide for prompt resolution of any unresolved Objection Disputes and, in resolving the unresolved disputesany event, and the proceeding before the Accountants to make its determination in respect of such Objection Disputes within thirty (30) days following its retention. The Independent Auditor shall be an expert determination under the Law governing expert determination instructed to review only those amounts and appraisal proceedingsitems that are in dispute and shall not be permitted to review any items or amounts that are not in dispute. The Accountants’ Independent Auditor shall make its determination of such unresolved disputes shall be based solely on written submissions documents submitted by the Representative and Buyer and Seller (their respective representatives. The Independent Auditor’s determination of such Objection Disputes shall be deemed to be an arbitration award and not by independent review), and shall be final and binding upon all Partiesthe Parties and non-appealable; provided, however, that no such determination with respect to any item reflected in the Objection Statement shall be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to Seller the Representative than is proposed in the Objections Objection Statement. The costsfees, costs and expenses and fees of the Accountants Independent Auditor shall be borne by Buyerthe Representative, on the one hand, and SellerBuyer, on the other hand, based on the inverse of the percentage of the amounts that the Independent Auditor determines in inverse proportion such Party’s favor bears to the difference between aggregate amount of the Final Cash Payment (total items in dispute as determined by originally submitted to Independent Auditor. For example, should the Accountants) aggregate items in dispute total $1,000 and the Cash Payment as calculated Independent Auditor awards $600 in favor of the Representative’s position, sixty percent (60%) of the costs of its review would be borne by Buyer and Seller in forty percent (40%) of the costs would be borne by the Representative. The final Closing Statement and Objections Statement, respectively. The Closing Statement shall be revised as appropriate to reflect the resolution of any objections thereto however determined pursuant to this Section 1.8(b)1.05, will produce the Working Capital Surplus or Working Capital Deficit, if any, the Cash Amount, the Funded Debt and the Transaction Expenses Amount, in each case to be used to determine the final Cash Payment Payment. The process set forth in the so-revised Closing Statement this Section 1.05 shall be the Final Cash Payment. Any objection not specified exclusive remedy of the Parties for any disputes related to items required to be reflected on the Closing Statement or included in the Objections Statement shall be deemed waived by Seller for purposes calculation of determining Working Capital, the Final Working Capital Surplus or Working Capital Deficit, if any, the Cash Payment and without limiting any other right Amount, the amount of Seller under this AgreementFunded Debt or the Transaction Expenses Amount.

Cash Payment Determination. (a) Within ninety sixty (9060) days after the Closing Date, Buyer shall prepare and deliver to Seller the Representative a statement setting forth in reasonable detail Buyer’s calculation of the Acquired Company Closing CashCash Amount, Acquired Company Closing DebtDebt Amount, Transaction Expenses Amount, Working Capital, Working Capital Surplus, if any, and Working Capital Deficit, if any, in each case as of the Closing Debt-Like Items, the Working Capital Amount, the Working Capital Surplus (if any) and the Working Capital Deficit (if any) Date and, based on such calculations, Buyer’s calculation of the Cash Payment (such statement, the “Closing Statement”). If Buyer does not deliver a Closing Statement within such sixty (60)-day period, along with reasonable supporting detail used then following written notice by the Representative of such failure and a failure by Buyer to compute cure within ten (10) days following such notice, then at the information set forth therein.election of the Representative in its sole discretion, either (i) the adjustment to the Estimated Cash Payment pursuant to Section 1.8(b) shall be deemed to equal zero or (ii) the Representative shall make any adjustments necessary to the calculation of the Estimated Cash Payment consistent with the provisions of this Article 1 and such determination of the adjustments to the Estimated Cash Payment pursuant to Section 1.8(b) shall, absent manifest error, be conclusive and binding on the parties hereto.. (b) For a During the thirty (30) day period of forty-five (45) days after following the delivery Representative’s receipt of the Closing Statement, Buyer shall provide Seller cause the Company to afford the Representative and any accountants or advisors retained by Seller with the its representatives reasonable opportunity, during normal business hours, upon reasonable advance notice, opportunity to review (the necessary books and copy) the relevant Books and Records records of the Business Company relating to the extent used by Buyer in the preparation of, or otherwise reasonably relevant to, the Closing Statement, and to discuss such Books and Records and of the Closing Statement and discuss the same with the relevant personnel of Buyer and its Affiliatesappropriate Company employees, in each case to as reasonably requested by the extent reasonably necessary for, and for the sole purpose of, Seller’s Representative in connection with its review of the Closing Statement; provided, provided that the independent accountants of Buyer shall not be obligated to make any work papers available to Seller or its representatives unless and until Seller or such representative has signed a customary agreement relating to such access to work papers in form will be at reasonable times, upon reasonable notice and substance reasonably acceptable to such independent accountantswill not unduly interfere with the Company’s normal business operations. If Seller the Representative has any objections to the Closing StatementStatement prepared by Buyer, then Seller the Representative will deliver to Buyer a detailed written statement (the “Objections Statement”) describing (i) which the items on the Closing Statement have not been prepared in accordance with this Agreementto which the Representative objects, (ii) the basis for Sellerthe Representative’s disagreement with the calculation of such items and (iii) Sellerthe Representative’s proposed dollar amount for each item in dispute, to Buyer within forty-five thirty (4530) days after delivery of the Closing Statement; provided that the Representative may not make any objection the basis for which is inconsistent with the terms of this Agreement. If Seller notifies Buyer that it accepts the contents of the Earnout Report or if Seller Representative fails to deliver an Objections Statement within such forty-five thirty (4530) day period, then the Closing Statement shall be final, become final and binding and non-appealable by the Parties and the Cash Payment set forth therein on all Parties. The Representative shall be deemed to have agreed with all amounts and items contained or reflected in the Final Cash Payment. Closing Statement to the extent such amounts or items are not disputed in the Objections Statement. (c) If Seller the Representative delivers an Objections Statement within such forty-five thirty (4530) day period, then the Representative and Buyer and Seller will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after Buyer the Representative has received the submitted any Objections StatementStatements, any remaining items and amounts set forth in the Objections Statement matters which remain are in dispute will be resolved by Deloitte BDO USA, LLP pursuant to the terms of a joint engagement by Buyer and Seller, provided that if such accounting firm has a material relationship with either Buyer or Seller or is otherwise unable or unwilling to serve in the requested capacity and Buyer and Seller are unable to agree on the choice of an alternative accounting firm, Buyer and Seller will select a nationally-recognized U.S. accounting firm having no material relationship with either Buyer or Seller by lot (after excluding their respective regular outside accounting firms) (the engaged accountants, the “Accountants”). The Accountants will prepare and deliver a written report to Buyer and Seller the Representative and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants shall act as an expert, not as an arbitrator, in resolving the unresolved disputes, and the proceeding before the Accountants shall be an expert determination under the Law governing expert determination and appraisal proceedings. The Accountants’ determination of such unresolved disputes shall be based solely on written submissions by Buyer and Seller (and not by independent review), and shall will be final and binding upon all PartiesParties and not subject to review by a court or other tribunal; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to Seller the Representative than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by Buyer, on the one hand, and Seller, on Party whose calculation of the other hand, in inverse proportion to the difference between the Final Cash Payment (has the greatest difference from the final Cash Payment as determined by the Accountants) and the Cash Payment as calculated by Buyer and Seller in the Accountants under this Section 1.9. The final Closing Statement and Objections Statement, respectively. The Closing Statement shall be revised as appropriate to reflect the resolution of any objections thereto however determined pursuant to this Section 1.8(b)1.9, will produce the Working Capital Surplus, if any, the Working Capital Deficit, if any, the Cash Amount, the Debt Amount and the Transaction Expenses Amount to be used to determine the final Cash Payment set forth in (the so-revised Closing Statement shall be the “Final Cash Payment. Any objection not specified in the Objections Statement shall be deemed waived by Seller for purposes of determining the Final Cash Payment and without limiting any other right of Seller under this Agreement”).

Cash Payment Determination. (a) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to Seller the Representative (a) a statement setting forth in reasonable detail Buyer’s calculation of the Acquired Company Closing Cash, Acquired Company Closing Debt, the Closing Debt-Like Items, the Working Capital Amount, the Working Capital Surplus (if any) and the Working Capital Deficit (if any) and, based on such calculations, Buyer’s calculation of the Cash Amount, Debt Amount, Designated Payables Amount and Transaction Expenses Amount, and Working Capital, Working Capital Deficit, if any, and Working Capital Surplus, if any, and based on such calculations, the Cash Payment (such statement, the “Closing Statement”), along with reasonable supporting detail used by Buyer and (b) all records and work papers reasonably necessary to compute and verify the information set forth therein. (b) For a period of forty-five (45) days after the delivery of in the Closing Statement, Buyer shall provide Seller and any accountants or advisors retained by Seller with the reasonable opportunity, during normal business hours, upon reasonable advance notice, to review (and copy) the relevant Books and Records of the Business to the extent used by Buyer in the preparation of, or otherwise reasonably relevant to, the Closing Statement, and to discuss such Books and Records and the Closing Statement with the relevant personnel of Buyer and its Affiliates, in each case to the extent reasonably necessary for, and for the sole purpose of, Seller’s review of the Closing Statement; provided, that the independent accountants of Buyer shall not be obligated to make any work papers available to Seller or its representatives unless and until Seller or such representative has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountants. If Seller the Representative has any objections to the Closing StatementStatement prepared by Buyer, then Seller the Representative will deliver to Buyer a reasonably detailed written statement (the “Objections Statement”) describing (ia) which items on the Closing Statement have not been prepared in accordance with this Agreement, (iib) the basis for Sellerthe Representative’s disagreement with the calculation of such items and (iiic) Sellerthe Representative’s proposed dollar amount for each item in dispute, to Buyer within forty-five thirty (4530) days after delivery of the Closing Statement. If Seller notifies Buyer that it accepts the contents of the Earnout Report or if Seller Representative fails to deliver an Objections Statement within such forty-five thirty (4530) day period, then the Closing Statement shall be final, become final and binding and non-appealable by the Parties and the Cash Payment set forth therein on all Parties. The Representative shall be deemed to have agreed with all amounts and items contained or reflected in the Final Cash PaymentClosing Statement to the extent such amounts or items are not disputed in the Objections Statement. If Seller the Representative delivers an Objections Statement within such forty-five thirty (4530) day period, then the Representative and Buyer and Seller will use commercially reasonable efforts negotiate in good faith to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after Buyer the Representative has received the submitted any Objections StatementStatements, any remaining items and amounts set forth in the Objections Statement matters which remain are in dispute will be resolved by the Denver office of Deloitte LLP pursuant to the terms of a joint engagement by Buyer and Seller, provided that if such accounting firm has a material relationship with either Buyer or Seller or is otherwise unable or unwilling to serve in the requested capacity and Buyer and Seller are unable to agree on the choice of an alternative accounting firm, Buyer and Seller will select a nationally-recognized U.S. accounting firm having no material relationship with either Buyer or Seller by lot Touche Tohmatsu Limited (after excluding their respective regular outside accounting firms) (the engaged accountants, the “Accountants”). The Accountants will prepare and deliver a written report to Buyer and Seller the Representative and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants shall act as an expert, not as an arbitrator, in resolving the unresolved disputes, and the proceeding before the Accountants shall be an expert determination under the Law governing expert determination and appraisal proceedings. The Accountants’ determination of such unresolved disputes shall be based solely on written submissions by Buyer and Seller (and not by independent review), and shall will be final and binding upon all PartiesParties and not subject to review by a court or other tribunal; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to Seller the Representative than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by either the Equityholders, if the Representative’s calculation of the Cash Payment has the greatest difference from the final Cash Payment as determined by the Accountants under this Section 1.11 on the one hand, or Buyer, if Buyer’s calculation of the Cash Payment has the greatest difference from the final Cash Payment as determined by the Accountants under this Section 1.11; otherwise, such costs, fees and expenses of the Accountants shall be borne equally by Buyer, on the one hand, and Sellerthe Representative (on behalf of the Equityholders), on the other hand, in inverse proportion to the difference between the Final Cash Payment (as determined by the Accountants) and the Cash Payment as calculated by Buyer and Seller in the . The final Closing Statement and Objections Statement, respectively. The Closing Statement shall be revised as appropriate to reflect the resolution of any objections thereto however determined pursuant to this Section 1.8(b)1.11, will produce the Working Capital Deficit, if any, the Working Capital Surplus, if any, the Cash Amount, the Debt Amount, the Designated Payables Amount and the Transaction Expenses Amount to be used to determine the final Cash Payment set forth in (the so-revised Closing Statement shall be the “Final Cash Payment”). Any objection not specified in the Objections Statement shall be deemed waived by Seller for purposes of determining the Final Cash Payment and without limiting any other right of Seller under this AgreementCERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED, AND THE EXCLUDED TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH THREE ASTERISKS [***].

Cash Payment Determination. Within sixty (a) Within ninety (9060) days after the Closing Date, Buyer shall prepare and deliver to Seller the Representative a detailed statement setting forth in reasonable detail Buyer’s calculation of the Acquired Company Closing CashCash Amount, Acquired Company Closing DebtDebt Amount, Transaction Expenses Amount, Working Capital, Working Capital Surplus, if any, and Working Capital Deficit, if any, in each case as of the Closing Debt-Like ItemsDate, together with all records and work papers necessary to compute and verify the Working Capital Amount, the Working Capital Surplus (if any) and the Working Capital Deficit (if any) information and, based on such calculations, Buyer’s calculation of the Cash Payment (such statement, the “Closing Statement”), along with reasonable supporting detail . Buyer shall provide Representative access to the books and records used by Buyer to compute calculate the information set forth therein. (b) For Closing Statement within a reasonable period of forty-five (45) days after the delivery time in order to determine Buyer’s calculation of the Closing Statement, Buyer shall provide Seller and any accountants or advisors retained by Seller with the reasonable opportunity, during normal business hours, upon reasonable advance notice, to review (and copy) the relevant Books and Records of the Business to the extent used by Buyer in the preparation of, or otherwise reasonably relevant to, the Closing Statement, and to discuss such Books and Records and the Closing Statement with the relevant personnel of Buyer and its Affiliates, in each case to the extent reasonably necessary for, and for the sole purpose of, Seller’s review of the Closing Statement; provided, that the independent accountants of Buyer shall not be obligated to make any work papers available to Seller or its representatives unless and until Seller or such representative has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountants. If Seller the Representative has any objections to the Closing StatementStatement prepared by Buyer, then Seller the Representative will deliver to Buyer a detailed written statement (the “Objections Statement”) describing (ia) which items on the Closing Statement have not been prepared in accordance with this Agreement, (iib) the basis for Sellerthe Representative’s disagreement with the calculation of such items and (iiic) Sellerthe Representative’s proposed dollar amount for each item in dispute, to Buyer within forty-five fifteen (4515) days after delivery of the Closing Statement. If Seller notifies Buyer that it accepts the contents of the Earnout Report or if Seller Representative fails to deliver an Objections Statement within such forty-five fifteen (4515) day period, then the Closing Statement shall be final, become final and binding and non-appealable by the Parties and the Cash Payment set forth therein on all Parties. The Representative shall be deemed to have agreed with all amounts and items contained or reflected in the Final Cash PaymentClosing Statement to the extent such amounts or items are not disputed in the Objections Statement. If Seller the Representative delivers an Objections Statement within such forty-five fifteen (4515) day period, then the Representative and Buyer and Seller will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after Buyer the Representative has received the submitted any Objections StatementStatements, any remaining items and amounts set forth in the Objections Statement matters which remain are in dispute will be resolved by Deloitte RSM US LLP pursuant to the terms of a joint engagement by Buyer and Seller, provided that if such accounting firm has a material relationship with either Buyer or Seller or is otherwise unable or unwilling to serve in the requested capacity and Buyer and Seller are unable to agree on the choice of an alternative accounting firm, Buyer and Seller will select a nationally-recognized U.S. accounting firm having no material relationship with either Buyer or Seller by lot (after excluding their respective regular outside accounting firms) (the engaged accountants, the “Accountants”). The Accountants will prepare and deliver a written report to Buyer and Seller the Representative and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants shall act as an expert, not as an arbitrator, in resolving the unresolved disputes, and the proceeding before the Accountants shall be an expert determination under the Law governing expert determination and appraisal proceedings. The Accountants’ determination of such unresolved disputes determinations shall be based solely on written the submissions by Buyer and Seller the Parties (and not by independent review), this Agreement and shall the applicable defined terms set forth in this Agreement. The Accountants’ determination of such unresolved disputes will be final and binding upon all PartiesParties and not subject to review by a court or other tribunal absent manifest error; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to Seller the Representative than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by the Party whose calculation of the Cash Payment has the greatest difference from the final Cash Payment as determined by the Accountants under this Section 1.5; otherwise, such costs, fees and expenses shall be borne equally by Buyer, on the one hand, and Sellerthe Representative (on behalf of the Sellers), on the other hand, in inverse proportion to the difference between the Final Cash Payment (as determined by the Accountants) and the Cash Payment as calculated by Buyer and Seller in the . The final Closing Statement and Objections Statement, respectively. The Closing Statement shall be revised as appropriate to reflect the resolution of any objections thereto however determined pursuant to this Section 1.8(b)1.5, will produce the Working Capital Surplus, if any, the Working Capital Deficit, if any, the Cash Amount, the Debt Amount and the Transaction Expenses Amount to be used to determine the final Cash Payment set forth in (the so-revised Closing Statement shall be the “Final Cash Payment. Any objection not specified in the Objections Statement shall be deemed waived by Seller for purposes of determining the Final Cash Payment and without limiting any other right of Seller under this Agreement”).

Cash Payment Determination. Within sixty (a) Within ninety (9060) days after the Closing Date, Buyer may, but shall not be required to, prepare and deliver to Seller Representative (a) a statement setting forth in reasonable detail Buyer’s calculation of the Acquired Company Closing Cash, Acquired Company Closing Debt, Working Capital as of the Closing Debt-Like ItemsDate, the Working Capital Deficit, if any, and Debt Amount, Transaction Expenses Balance, the Working Capital Surplus (if any) Representative Expense Fund Amount, and the Working Capital Deficit (if any) and, based on such calculations, Buyer’s calculation of the Cash Payment (such statement, the “Closing Statement”), along with reasonable supporting detail used by Buyer and (b) all records and work papers reasonably necessary, in the determination of Buyer, to compute and verify the information set forth therein. (b) For a period of forty-five (45) days after the delivery of in the Closing Statement, Buyer shall provide Seller and any accountants or advisors retained by Seller with the reasonable opportunity, during normal business hours, upon reasonable advance notice, to review (and copy) the relevant Books and Records of the Business Statement to the extent used by Buyer in the preparation of, or otherwise reasonably relevant to, the Closing Statement, such records and to discuss such Books and Records and the Closing Statement with the relevant personnel of Buyer and its Affiliates, in each case to the extent reasonably necessary for, and for the sole purpose of, Seller’s review of the Closing Statement; provided, that the independent accountants of Buyer shall not be obligated to make any work papers available differ from the ones previously delivered to Seller or its representatives unless and until Seller or such representative has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountantsBuyer. If Seller Representative, on behalf of Sellers, has any objections to the Closing StatementStatement prepared by Buyer, then Seller Representative will deliver to Buyer a detailed written statement (the “Objections Statement”) describing (ia) which items on the Closing Statement have not been prepared in accordance with this Agreement, (iib) the basis for Seller’s Sellers’ disagreement with the calculation of such items items, and (iiic) Seller’s Sellers’ proposed dollar amount for each item in dispute, to Buyer within forty-five thirty (4530) days after delivery of the Closing Statement. If Seller notifies Buyer that it accepts the contents of the Earnout Report or if Seller Representative fails to deliver an Objections Statement within such forty-five thirty (4530) day period, then the Closing Statement shall be final, become final and binding and non-appealable by the Parties and the Cash Payment set forth therein on all Parties. Sellers shall be deemed to have agreed with all amounts and items contained or reflected in the Final Cash PaymentClosing Statement to the extent such amounts or items are not disputed in the Objections Statement. If Seller Representative delivers an Objections Statement within such forty-five thirty (4530) day period, then Sellers and Buyer and Seller will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after Buyer Seller Representative has received the submitted any Objections StatementStatements, any remaining items and amounts set forth in the Objections Statement matters which remain are in dispute will be resolved by Deloitte RSM US LLP pursuant to the terms of a joint engagement by Buyer and Seller, provided that if such accounting firm has a material relationship with either Buyer or Seller or is otherwise unable or unwilling to serve in the requested capacity and Buyer and Seller are unable to agree on the choice of an alternative accounting firm, Buyer and Seller will select a nationally-recognized U.S. accounting firm having no material relationship with either Buyer or Seller by lot (after excluding their respective regular outside accounting firms) (the engaged accountants, the “Accountants”). The Accountants will prepare and deliver a written report to Buyer and Seller Representative and will submit a proposed resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants shall act as an expert, not as an arbitrator, in resolving the unresolved disputes, and the proceeding before the Accountants shall be an expert determination under the Law governing expert determination and appraisal proceedings. The Accountants’ determination of such unresolved disputes shall be based solely on written submissions by Buyer and Seller (and not by independent review), and shall will be final and binding upon all Parties; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to Seller Sellers than is proposed in the Objections Statement. The costs, expenses and fees of the Accountants shall be borne by the Party whose calculation of the Cash Payment has the greatest difference from the final Cash Payment as determined by the Accountants under this Section 1.5; otherwise, such costs, fees and expenses shall be borne equally by Buyer, on the one hand, and SellerSellers, pursuant to their Pro Rata Shares, on the other hand, in inverse proportion to the difference between the Final Cash Payment (as determined by the Accountants) and the Cash Payment as calculated by Buyer and Seller in the . The final Closing Statement and Objections Statement, respectively. The Closing Statement shall be revised as appropriate to reflect the resolution of any objections thereto however determined pursuant to this Section 1.8(b)1.5, will produce the Working Capital Deficit, if any, Debt Amount, and Transaction Expenses Balance to be used to determine the Cash Payment set forth in the so-revised Closing Statement shall be the Final final Cash Payment. Any objection If Buyer does not specified in prepare a Closing Statement within sixty (60) days of the Objections Statement Closing Date, then the certificate provided by the Seller Representative pursuant to Section 1.3 shall be deemed waived by Seller for purposes determinative of determining the Final final Cash Payment and without limiting any other right of Seller under this Agreementcalculation.

Cash Payment Determination. (a) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to Seller the Representative (a) a statement setting forth in reasonable detail Buyer’s good faith calculation of the Acquired Company Closing Cash, Acquired Company Closing Debt, the Closing Debt-Like Items, (i) the Working Capital Amount, and the Working Capital Surplus (or Working Capital Deficit, if any, (ii) the Cash Amount, (iii) the amount of Funded Debt, (iv) the Transaction Expense Amount, and the Working Capital Deficit (if anyv) and, based on such calculationsthe amounts set forth in clauses (i) through (iv), Buyer’s calculation of the Cash Payment (such statement, the “Closing Statement”), along with reasonable supporting detail used by Buyer ) and (b) all records and work papers reasonably necessary to compute and verify the information set forth therein. (b) For a period of forty-five (45) days after in the Closing Statement. The Closing Statement shall be prepared by Buyer in accordance with the Accounting Methodologies. After delivery of the Closing Statement, Buyer the Representative and its accountants shall provide Seller and any accountants or advisors retained by Seller with the be permitted to make reasonable opportunity, during normal business hours, upon reasonable advance notice, to review (and copy) the relevant Books and Records of the Business to the extent used by Buyer in the preparation of, or otherwise reasonably relevant to, the Closing Statement, and to discuss such Books and Records and the Closing Statement with the relevant personnel inquiries of Buyer and its Affiliates, in each case to the extent reasonably necessary for, and for the sole purpose of, Seller’s review of accountants regarding questions concerning or disagreements with the Closing Statement; provided, that Statement arising in the independent accountants course of Buyer shall not be obligated to make any work papers available to Seller or its representatives unless and until Seller or such representative has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountantstheir review thereof. If Seller the Representative has any objections to the Closing Statement, then Seller will the Representative shall deliver to Buyer a written statement (an “Objection Statement”) setting forth its disputes or objections (the “Objections StatementObjection Disputes”) describing (i) which items on to the Closing Statement have not been prepared in accordance with this Agreementand, (ii) to the basis for Seller’s disagreement with extent practical, the calculation of such items and (iii) SellerRepresentative’s proposed dollar amount for resolution of each item in dispute, such Objection Dispute. If an Objection Statement is not delivered to Buyer within forty-five thirty (4530) days after delivery of the Closing Statement. If Seller notifies Buyer that it accepts the contents of the Earnout Report or if Seller fails to deliver an Objections Statement within such forty-five (45) day period, then the Closing Statement as originally delivered by Buyer shall be final, binding and non-appealable by the Parties and the Cash Payment set forth therein shall be the Final Cash PaymentParties. If Seller delivers an Objections Objection Statement within such forty-five (45) day periodis timely delivered, then Buyer and Seller will use commercially reasonable efforts the Representative shall negotiate in good faith to resolve any such disputesObjection Disputes, but if they do not reach a final resolution is not obtained within thirty (30) days after Buyer has received the Objections Statement, any remaining items and amounts set forth in the Objections Statement which remain in dispute will be resolved by Deloitte LLP pursuant to the terms of a joint engagement by Buyer and Seller, provided that if such accounting firm has a material relationship with either Buyer or Seller or is otherwise unable or unwilling to serve in the requested capacity and Buyer and Seller are unable to agree on the choice of an alternative accounting firm, Buyer and Seller will select a nationally-recognized U.S. accounting firm having no material relationship with either Buyer or Seller by lot (after excluding their respective regular outside accounting firms) (the engaged accountants, the “Accountants”). The Accountants will prepare and deliver a written report to Buyer and Seller and will submit a resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted delivery of the Objection Statement, the Representative and Buyer shall submit each unresolved Objection Dispute to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (the Accountants“Independent Auditor”) to resolve such Objection Disputes. The Accountants Independent Auditor shall act as an expert, not as an arbitratorbe instructed to set forth a procedure to provide for prompt resolution of any unresolved Objection Disputes and, in resolving the unresolved disputesany event, and the proceeding before the Accountants to make its determination in respect of such Objection Disputes within thirty (30) days following its retention. The Independent Auditor shall be an expert determination under the Law governing expert determination instructed to review only those amounts and appraisal proceedingsitems that are in dispute and shall not be permitted to review any items or amounts that are not in dispute. The Accountants’ Independent Auditor shall make its determination of such unresolved disputes shall be based solely on written submissions documents submitted by the Representative and Buyer and Seller (their respective representatives. The Independent Auditor’s determination of such Objection Disputes shall be deemed to be an arbitration award and not by independent review), and shall be final and binding upon all Partiesthe Parties and non-appealable; provided, however, that no such determination with respect to any item reflected in the Objection Statement shall be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to Seller the Representative than is proposed in the Objections Objection Statement. The costsfees, costs and expenses and fees of the Accountants Independent Auditor shall be borne by Buyerthe Representative, on the one hand, and SellerBuyer, on the other hand, based on the inverse of the percentage of the amounts that the Independent Auditor determines in inverse proportion such Party’s favor bears to the difference between aggregate amount of the Final Cash Payment (total items in dispute as determined by originally submitted to Independent Auditor. For example, should the Accountants) aggregate items in dispute total $1,000 and the Cash Payment as calculated Independent Auditor awards $600 in favor of the Representative’s position, sixty percent (60%) of the costs of its review would be borne by Buyer and Seller in forty percent (40%) of the costs would be borne by the Representative. The final Closing Statement and Objections Statement, respectively. The Closing Statement shall be revised as appropriate to reflect the resolution of any objections thereto however determined pursuant to this Section 1.8(b)1.05, will produce the Working Capital Surplus or Working Capital Deficit, if any, the Cash Amount, the Funded Debt and the Transaction Expenses Amount, in each case to be used to determine the final Cash Payment Payment. The process set forth in the so-revised Closing Statement this Section 1.05 shall be the Final Cash Payment. Any objection not specified exclusive remedy of the Parties for any disputes related to items actually reflected on the Closing Statement or actually included in the Objections Statement shall be deemed waived by Seller for purposes calculation of determining Working Capital, the Final Working Capital Surplus or Working Capital Deficit, if any, the Cash Payment and without limiting any other right Amount, the amount of Seller under this AgreementFunded Debt or the Transaction Expenses Amount.