Common use of Merger Consideration Adjustment Clause in Contracts

Merger Consideration Adjustment. (a) Within forty five (45) days after the Closing Date, the Purchaser’s Chief Financial Officer (the “CFO”) shall deliver to the Purchaser Representative and the Seller Representative a statement (the “Closing Statement”) setting forth (i) a consolidated balance sheet of the Target Companies as of the Reference Time and (ii) a good faith calculation of the Net Debt as of the Reference Time, and the resulting Merger Consideration. The Closing Statement shall be prepared, and the Net Debt and the resulting Merger Consideration and Stockholder Merger Consideration shall be determined in accordance with the Accounting Principles and otherwise in accordance with this Agreement. (b) After delivery of the Closing Statement, each of the Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, shall be permitted reasonable access to the books, records, working papers, files, facilities and personnel of the Target Companies relating to the preparation of the Closing Statement. The Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, may make inquiries of the CFO and related Purchaser and Target Company personnel and advisors regarding questions concerning or disagreements with the Closing Statement arising in the course of their review thereof, and Purchaser and the Company shall provide reasonable cooperation in connection therewith. If either the Seller Representative or the Purchaser Representative (each, a “Representative Party”) has any objections to the Closing Statement, such Representative Party shall deliver to the CFO and the other Representative Party a statement setting forth its objections thereto (in reasonable detail) (an “Objection Statement”). If an Objection Statement is not delivered by a Representative Party within thirty (30) days following the date of delivery of the Closing Statement, then such Representative Party will have waived its right to contest the Closing Statement, all determinations and calculations set forth therein, and the resulting Merger Consideration set forth therein. If an Objection Statement is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative shall negotiate in good faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative and the Purchaser Representative do not reach a final resolution within such twenty (20) day period, then upon the written request of either Representative Party (the date of receipt of such notice by the other Party, the “Independent Expert Notice Date”), the Representative Parties will refer the dispute to the Independent Expert for final resolution of the dispute in accordance with Section 1.15(c). For purposes hereof, the “Independent Expert” shall mean a mutually acceptable independent (i.e., no prior material business relationship with any party for the prior two (2) years) accounting firm appointed by the Purchaser Representative and the Seller Representative, which appointment will be made no later than ten (10) days after the Independent Expert Notice Date); provided, that if the Independent Expert does not accept its appointment or if the Purchaser Representative and the Seller Representative cannot agree on the Independent Expert, in either case within twenty (20) days after the Independent Expert Notice Date, either Representative Party may require, by written notice to the other Representative Party, that the Independent Expert be selected by the New York City Regional Office of the AAA in accordance with the AAA’s procedures. The parties agree that the Independent Expert will be deemed to be independent even though a Party or its Affiliates may, in the future, designate the Independent Expert to resolve disputes of the types described in this Section 1.15. The Parties acknowledge that any information provided pursuant to this Section 1.15 will be subject to the confidentiality obligations of Section 5.15.

Merger Consideration Adjustment. (a) Within forty five ninety (4590) days after the Closing Date, the Purchaser’s Chief Financial Officer (the “CFO”) shall deliver to the Purchaser Representative and the Seller Representative a statement (the “Closing Statement”) setting forth (i) a consolidated balance sheet of the Target Companies Company as of the Reference Time and (ii) a good faith calculation of the Net Debt as of the Reference Time, and the resulting Merger ConsiderationConsideration using the formula in Section 1.8. The Closing Statement shall be prepared, and the Closing Net Debt Indebtedness and the resulting Merger Consideration and Stockholder Merger Consideration shares shall be determined in accordance with the Accounting Principles and otherwise in accordance with this Agreement. (b) After delivery of the Closing Statement, each of the Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, shall be permitted reasonable access to the books, records, working papers, files, facilities and personnel of the Target Companies Company relating to the preparation of the Closing Statement. The Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, may make inquiries of the CFO and related Purchaser and Target Company personnel and advisors regarding questions concerning or disagreements with the Closing Statement arising in the course of their review thereof, and Purchaser and the Company shall provide reasonable cooperation in connection therewith. If either the Seller Representative or the Purchaser Representative (each, a “Representative Party”) has any objections to the Closing Statement, such Representative Party shall deliver to the CFO and the other Representative Party a statement setting forth its objections thereto (in reasonable detail) (an “Objection Statement”). If an Objection Statement is not delivered by a Representative Party within thirty (30) days following the date of delivery of the Closing Statement, then such Representative Party will have waived its right to contest the Closing Statement, all determinations and calculations set forth therein, and the resulting Merger Consideration set forth therein. If an Objection Statement is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative shall negotiate in good faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative and the Purchaser Representative do not reach a final resolution within such twenty (20) day period, then upon the written request of either Representative Party (the date of receipt of such notice by the other Party, the “Independent Expert Notice Date”), the Representative Parties will refer the dispute to the Independent Expert for final resolution of the dispute in accordance with Section 1.15(c1.13(c). For purposes hereof, the “Independent Expert” shall mean a mutually acceptable independent (i.e., no prior material business relationship with any party for the prior two (2) years) accounting firm appointed by the Purchaser Representative and the Seller Representative, which appointment will be made no later than ten (10) days after the Independent Expert Notice Date); provided, that if the Independent Expert does not accept its appointment or if the Purchaser Representative and the Seller Representative cannot agree on the Independent Expert, in either case within twenty (20) days after the Independent Expert Notice Date, either Representative Party may require, by written notice to the other Representative Party, that the Independent Expert be selected by the New York City Regional Office of the AAA in accordance with the AAA’s procedures. The parties agree that the Independent Expert will be deemed to be independent even though a Party or its Affiliates may, in the future, designate the Independent Expert to resolve disputes of the types described in this Section 1.151.13. The Parties acknowledge that any information provided pursuant to this Section 1.15 1.13 will be subject to the confidentiality obligations of Section 5.15.

Merger Consideration Adjustment. (a) Within forty five ninety (4590) days after the Closing Date, the PurchaserPubco’s Chief Financial Officer (the “CFO”) shall deliver to the Purchaser Representative and the Seller Representative a statement (the “Closing Statement”) setting forth (i) a consolidated balance sheet of the Target Companies as of the Reference Time and (ii) a good faith calculation of the Closing Net Debt Indebtedness, Net Working Capital and Transaction Expenses, in each case, as of the Reference Time, and the resulting Merger ConsiderationConsideration and Merger Consideration Shares using the formula in Section 1.7. The Closing Statement shall be prepared, and the Closing Net Debt Indebtedness, Net Working Capital, and Transaction Expenses and the resulting Merger Consideration and Stockholder Merger Consideration Shares shall be determined in accordance with the Accounting Principles and otherwise in accordance with this Agreement. (b) After delivery of the Closing Statement, each of the Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, shall be permitted reasonable access to the books, records, working papers, files, facilities and personnel of the Target Companies relating to the preparation of the Closing Statement. The Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, may make inquiries of the CFO and related Purchaser Pubco and Target Company personnel and advisors regarding questions concerning or disagreements with the Closing Statement arising in the course of their review thereof, and Purchaser Pubco and the Company shall provide reasonable cooperation in connection therewith. If either the Seller Representative or the Purchaser Representative (each, a “Representative Party”) has any objections to the Closing Statement, such Representative Party shall deliver to the CFO and the other Representative Party a statement setting forth its objections thereto (in reasonable detail) (an “Objection Statement”). If an Objection Statement is not delivered by a Representative Party within thirty (30) days following the date of delivery of the Closing Statement, then such Representative Party will have waived its right to contest the Closing Statement, all determinations and calculations set forth therein, and the resulting Merger Consideration set forth therein. If an Objection Statement is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative shall negotiate in good faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative and the Purchaser Representative do not reach a final resolution within such twenty (20) day period, then upon the written request of either Representative Party (the date of receipt of such notice by the other Party, the “Independent Expert Notice Date”), the Representative Parties will refer the dispute to the Independent Expert for final resolution of the dispute in accordance with Section 1.15(c). For purposes hereof, the “Independent Expert” shall mean a mutually acceptable independent (i.e., no prior material business relationship with any party for the prior two (2) years) accounting firm appointed by the Purchaser Representative and the Seller Representative, which appointment will be made no later than ten (10) days after the Independent Expert Notice Date); provided, that if the Independent Expert does not accept its appointment or if the Purchaser Representative and the Seller Representative cannot agree on the Independent Expert, in either case within twenty (20) days after the Independent Expert Notice Date, either Representative Party may require, by written notice to the other Representative Party, that the Independent Expert be selected by the New York City Regional Office of the AAA in accordance with the AAA’s procedures. The parties agree that the Independent Expert will be deemed to be independent even though a Party or its Affiliates may, in the future, designate the Independent Expert to resolve disputes of the types described in this Section 1.15. The Parties acknowledge that any information provided pursuant to this Section 1.15 will be subject to the confidentiality obligations of Section 5.15.Objection

Merger Consideration Adjustment. (a) Within forty five ninety (4590) days after the Closing Date, the Purchaser’s Chief Financial Officer (the “CFO”) shall deliver to the Purchaser Representative and the Seller Representative a statement (the “Closing Statement”) setting forth (i) a consolidated balance sheet of the Target Companies as of the Reference Time and (ii) a good faith calculation of the Closing Net Debt Indebtedness as of the Reference Time, and the resulting Merger ConsiderationConsideration using the formula in Section 1.8. The Closing Statement shall be prepared, and the Closing Net Debt Indebtedness and the resulting Merger Consideration and Stockholder Merger Consideration shares shall be determined in accordance with the Accounting Principles and otherwise in accordance with this Agreement. (b) After delivery of the Closing Statement, each of the Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, shall be permitted reasonable access to the books, records, working papers, files, facilities and personnel of the Target Companies relating to the preparation of the Closing Statement. The Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, may make inquiries of the CFO and related Purchaser and Target Company personnel and advisors regarding questions concerning or disagreements with the Closing Statement arising in the course of their review thereof, and Purchaser and the Company shall provide reasonable cooperation in connection therewith. If either the Seller Representative or the Purchaser Representative (each, a “Representative Party”) has any objections to the Closing Statement, such Representative Party shall deliver to the CFO and the other Representative Party a statement setting forth its objections thereto (in reasonable detail) (an “Objection Statement”). If an Objection Statement is not delivered by a Representative Party within thirty (30) days following the date of delivery of the Closing Statement, then such Representative Party will have waived its right to contest the Closing Statement, all determinations and calculations set forth therein, and the resulting Merger Consideration set forth therein. If an Objection Statement is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative shall negotiate in good faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative and the Purchaser Representative do not reach a final resolution within such twenty (20) day period, then upon the written request of either Representative Party (the date of receipt of such notice by the other Party, the “Independent Expert Notice Date”), the Representative Parties will refer the dispute to the Independent Expert for final resolution of the dispute in accordance with Section 1.15(c1.17(c). For purposes hereof, the “Independent Expert” shall mean a mutually acceptable independent (i.e., no prior material business relationship with any party for the prior two (2) years) accounting firm appointed by the Purchaser Representative and the Seller Representative, which appointment will be made no later than ten (10) days after the Independent Expert Notice Date); provided, that if the Independent Expert does not accept its appointment or if the Purchaser Representative and the Seller Representative cannot agree on the Independent Expert, in either case within twenty (20) days after the Independent Expert Notice Date, either Representative Party may require, by written notice to the other Representative Party, that the Independent Expert be selected by the New York City Regional Office of the AAA in accordance with the AAA’s procedures. The parties agree that the Independent Expert will be deemed to be independent even though a Party or its Affiliates may, in the future, designate the Independent Expert to resolve disputes of the types described in this Section 1.151.17. The Parties acknowledge that any information provided pursuant to this Section 1.15 1.17 will be subject to the confidentiality obligations of Section 5.15.

Merger Consideration Adjustment. (a) Within forty five sixty (4560) days after following the Closing Date, the Purchaser’s Chief Financial Officer (the “CFO”) Chart Representative on behalf of Pubco shall deliver to the Purchaser Representative and the Seller Members’ Representative a Closing statement (the “Closing Statement”) setting forth (i) a consolidated balance sheet of the Target Companies as of the Reference Time and (ii) a Chart Representative’s good faith calculation of the Adjustment Amount, including Net Debt as of the Reference Timeand Net Working Capital, and the resulting Merger Considerationtogether with reasonably detailed back-up data to support each item from which such amount is calculated. The Closing Statement shall be prepared, and the Net Debt and the resulting Merger Consideration and Stockholder Merger Consideration shall be determined prepared in accordance with GAAP and, to the Accounting Principles and otherwise extent not inconsistent therewith, using the same methodologies used in preparing the Financial Statements, taking into account information that becomes available after the Closing in accordance with this AgreementGAAP. Pubco shall and shall cause its Representatives to cooperate with the Chart Representative and its Representatives in the preparation of the Closing Statement as reasonably requested by the Chart Representative and its Representatives. (b) After The Members’ Representative shall have a period of thirty (30) days following the Chart Representative’s delivery of the Closing Statement, each Statement to notify the Chart Representative of the Seller Members’ Representative’s election to dispute the Closing Statement or any portion thereof. During such thirty (30)-day period, Pubco shall, and shall cause its Representatives to, provide the Members’ Representative and the Purchaser Representative, and their respective its Representatives on their behalves, shall be permitted with reasonable access to the all books, records, records and employees of Pubco and its Subsidiaries (including supporting documents and working papers, files, facilities and personnel of ) to the Target Companies extent relating to the preparation or review of the Closing Statement. The Seller If (i) at any time during such thirty (30)-day review period, the Members’ Representative delivers written notice to the Chart Representative of its acceptance of the Closing Statement or (ii) prior to the expiration of such thirty (30)-day review period, the Members’ Representative does not deliver to the Chart Representative written notice of its disagreement specifying the nature and amount of any disputed item (a “Notice of Adjustment Disagreement”), then the Closing Statement and any required adjustments resulting therefrom shall be deemed final and binding on the Members and the Members’ Representative. To the extent that the Members’ Representative delivers a timely Notice of Adjustment Disagreement, the Members’ Representative, on behalf of the Members, shall be deemed to have agreed with all items and amounts in the Closing Statement not specifically referenced in such Notice of Adjustment Disagreement, and such items and amounts shall not be subject to review in accordance with this Section 1.15(b) or Section1.15(d). Any Notice of Adjustment Disagreement may reference only disagreements (i) based upon either mathematical errors or amounts reflected in the Closing Statement or (ii) that either the Closing Statement or the calculation of the Adjustment Amount, or any amount contained therein was not prepared in accordance with this Article I (together with any corresponding definitions). (c) During the thirty (30)-day period following timely delivery of a Notice of Adjustment Disagreement by the Members’ Representative to the Chart Representative, the Chart Representative and the Purchaser Members’ Representative shall in good faith seek to resolve in writing any differences that they may have with respect to the matters identified therein, and all such discussions related thereto will (unless otherwise agreed by the Chart Representative and the Members’ Representative) be considered compromise negotiations under Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. During such thirty (30)-day period, the Members’ Representative shall provide the Chart Representative and its Representatives with reasonable access, during normal business hours and upon reasonable prior notice to the Members’ Representative, and their respective Representatives on their behalves, may make inquiries to the working papers of the CFO Members’ Representative and related Purchaser its Representatives relating to such Notice of Adjustment Disagreement. Any disputed items resolved in writing between the Members’ Representative and Target Company personnel the Chart Representative within such thirty (30)-day period shall be final and advisors regarding questions concerning or disagreements binding with respect to such items, and if the Closing Statement arising Members’ Representative and the Chart Representative agree in writing on the resolution of all disputed items specified by the Members’ Representative in the course Notice of their review thereofAdjustment Disagreement, the Adjustment Amount as so determined shall be final and Purchaser binding on the Parties. (d) In the event that the Members’ Representative and the Company shall provide reasonable cooperation Chart Representative are unable to resolve all disputed items in connection therewith. If either the Seller Representative or the Purchaser Representative (each, a “Representative Party”) has any objections to the Closing Statement, such Representative Party shall deliver to the CFO and the other Representative Party a statement setting forth its objections thereto (in reasonable detail) (an “Objection Statement”). If an Objection Statement is not delivered by a Representative Party Notice of Adjustment Disagreement within thirty (30) days following the date upon which the Chart Representative received the Notice of delivery of the Closing StatementAdjustment Disagreement, then such Representative Party will have waived its right to contest the Closing Statement, all determinations and calculations set forth therein, and the resulting Merger Consideration set forth therein. If an Objection Statement is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative shall negotiate in good faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative and the Purchaser Representative do not reach a final resolution within such twenty (20) day period, then upon the written request of either Representative Party (the date of receipt of such notice by the other Party, the “Independent Expert Notice Date”), the Representative Parties will refer the dispute to the Independent Expert for final resolution of the dispute in accordance with Section 1.15(c). For purposes hereof, the “Independent Expert” shall mean a mutually acceptable independent (i.e., no prior material business relationship with any party for the prior two (2) years) accounting firm appointed by the Purchaser Representative and the Seller Representative, which appointment will be made no later than ten (10) days after the Independent Expert Notice Date); providedexpiration of such thirty (30)-day period, that if the Independent Expert does not accept its appointment or if the Purchaser Chart Representative and the Seller Members’ Representative cannot agree on the Independent Expertshall submit, in either case within twenty (20) days after the Independent Expert Notice Datewriting, either Representative Party may require, by written notice to the other Representative PartyAccounting Firm, that their briefs detailing their views as to the Independent Expert nature and amount of each item remaining in dispute, and the Accounting Firm shall make a written determination as to each such disputed item, which determination shall be selected final and binding for purposes of this Agreement. The Accounting Firm shall be (i) engaged by the New York City Regional Office of Chart Representative and the AAA Members’ Representative on a joint basis and (ii) authorized to resolve only those items remaining in dispute between the Parties in accordance with the AAAprovisions of this Section 1.15 within the range of the difference between the Chart Representative’s proceduresposition with respect thereto and the Members’ Representative’s position with respect thereto. The parties agree that the Independent Expert will be deemed to be independent even though a Party or its Affiliates may, in the future, designate the Independent Expert to resolve disputes determination of the types described Accounting Firm shall be accompanied by a certificate of the Accounting Firm that it reached such determination in accordance with the provisions of this Section 1.15. The Chart Representative and the Members’ Representative shall request that the Accounting Firm render its determination prior to the expiration of sixty (60) days after the dispute is submitted to the Accounting Firm, and such determination and any required adjustments resulting therefrom shall be final and binding on all of the Parties acknowledge that any information provided and the Members’ Representative. The fees and expenses of the Accounting Firm shall be paid by Pubco or the Company. (e) Following the final determination of the Adjustment Amount, (i) if the Adjustment Amount is greater than the Estimated Adjustment Amount, the Members shall forfeit and Pubco shall reacquire at no cost and cancel Pubco Common Stock held by the Members in an aggregate amount equal to the product of (x) such excess, divided by (y) $10, and (ii) if the Estimated Adjustment Amount is greater than the Adjustment Amount, Pubco shall issue additional shares of Pubco Common Stock to the Members in an aggregate amount equal to the product of (x) such excess, divided by (y) $10. Any cancellation or issuance pursuant to this Section 1.15 will the foregoing shall be subject pro rata among the Members in proportion to the confidentiality obligations number of Section 5.15issued and outstanding Company Units held by such Member immediately prior to the Closing as compared to the total number of Company Units held by all the Members immediately prior to the Closing.

Merger Consideration Adjustment. (a) Within forty five As promptly as practicable, but in any event within sixty (4560) days after following the Closing Date, the Purchaser’s Chief Financial Officer (the “CFO”) Buyer shall prepare and deliver to the Purchaser Representative and the Seller Representative a closing statement (the “Closing Statement”) setting forth (i) a consolidated balance sheet Buyer’s calculation of the Target Companies Merger Consideration, which shall be determined as of the Reference Effective Time and (ii) a good faith taking into account, and setting forth as separate line items, all provisions establishing the basis for such calculation set forth in Section 2.2, including the calculation of Net Working Capital pursuant to the Net Debt as of the Reference TimeAccounting Principles, and the resulting Merger Consideration. The Closing Statement shall be preparedin each case, and the Net Debt and the resulting Merger Consideration and Stockholder Merger Consideration shall be determined in accordance together with the Accounting Principles and otherwise supporting documentation used by Xxxxx in accordance with this Agreementcalculating such amount. (b) After delivery The Seller Representative and its Representatives shall be given direct access to all supporting documents and information and work papers used in the preparation of the Closing StatementStatement and the calculation of the Net Working Capital and other components of Merger Consideration and to any personnel of Buyer or the Surviving Company reasonably requested by the Seller Representative and its Representatives, in each case, during normal business hours and upon reasonable advance notice and in connection with verifying the matters and calculations delivered by Buyer pursuant to Section 2.10(a) and any dispute relating thereto. The rights of the Seller Representative under this Agreement shall not be prejudiced by the failure of Buyer or the Surviving Company to comply with this Section 2.10(b) and, without limiting the generality of the foregoing, the time period for which the Seller Representative is required to notify of any Disputed Items under Section 2.10(c) shall be automatically extended by the number of days Buyer or the Surviving Company fails to comply with this Section 2.10(b) plus an additional 15 days. (c) The Seller Representative may dispute any amounts reflected on the Closing Statement and the Merger Consideration and the components thereof; provided, however, that the Seller Representative shall have notified Buyer in writing of each disputed item (collectively, the “Disputed Items”), specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute (a “Protest Notice”), within sixty (60) days of the Seller Representative’s receipt of all of the deliverables specified in Section 2.10(a). To the extent the Seller Representative provides a Protest Notice within sixty (60) days of the Seller Representative’s receipt of the deliverables specified in Section 2.10(a), all items that are not Disputed Items shall be final and binding for all purposes hereunder, and in the event the Seller Representative notifies Buyer in writing that it agrees with the Closing Statement and will not dispute same or, subject to Section 2.10(b), does not provide a Protest Notice to Buyer within sixty (60) days of the Seller Representative’s receipt of the deliverables specified in Section 2.10(a), the Seller Representative shall be deemed to have accepted in full the Closing Statement (which sets forth the calculation of the Merger Consideration) and the Net Working Capital, which shall, together with all components thereof, then be deemed final and binding for all purposes hereunder, in each case absent fraud in connection with the matters contemplated by this Section 2.10. After receipt by Xxxxx of a timely Protest Notice, Xxxxx and the Seller Representative shall discuss and attempt to reconcile their differences with respect to, and the amounts in respect of, the Disputed Items. If the Seller Representative and Buyer are unable to reach a resolution within thirty (30) days after receipt by Buyer of the Protest Notice, Buyer and the Seller Representative shall within thirty (30) days thereafter submit the remaining Disputed Items for resolution to the New York office of Xxxxx Xxxxxxxx, LLP (or, if such firm declines to act, to another nationally recognized public accounting firm mutually agreed upon by Xxxxx and the Seller Representative, which shall in no event be a “Big 4” accounting firm) (the “Independent Accounting Firm”), which shall be instructed by Xxxxx and the Seller Representative to resolve such remaining Disputed Items consistently with the terms and conditions of this Agreement within thirty (30) days after such submission and report such resolution to Buyer and the Seller Representative. Each of Buyer and the Seller Representative will be afforded the opportunity to present to the Independent Accounting Firm any material such Party deems relevant to the Independent Accounting Firm’s determination; provided, that, neither Buyer nor Seller Representative shall have any ex parte communications (whether written or oral) with the Independent Accounting Firm. Each of Buyer and the Seller Representative shall make available to the other party and the Independent Accounting Firm, as the case may be, such documents, books, records, work papers, facilities, personnel and other information as such party or the Independent Accounting Firm may reasonably request to review the Closing Statement and to resolve the Disputed Items, subject, if required by the accountants of the Surviving Company or its Subsidiaries, to the execution of a customary access letter. The Independent Accounting Firm’s determination must be in writing and must set forth, in reasonable detail, the basis therefor and must be based solely on the definitions and other applicable provisions of this Agreement, the presentations of the Seller Representative and the Purchaser Representative, Buyer and their respective Representatives not on their behalves, shall be permitted reasonable access an independent review. Notwithstanding anything herein to the bookscontrary, recordswith respect to its determination of each Disputed Item, working papers, files, facilities and personnel of the Target Companies relating Independent Accounting Firm may not assign a value to any Disputed Item greater than the preparation of the Closing Statement. The Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, may make inquiries of the CFO and related Purchaser and Target Company personnel and advisors regarding questions concerning greatest value for such Disputed Item claimed by Buyer or disagreements with the Closing Statement arising in the course of their review thereof, and Purchaser and the Company shall provide reasonable cooperation in connection therewith. If either the Seller Representative or less than the Purchaser Representative lowest value for such Disputed Item claimed by Buyer or the Seller Representative. The Independent Accounting Firm shall act as an expert and not as an arbitrator in performing the duties assigned to it by the Parties under this Agreement (each, a “Representative Party”) has any objections but shall be subject to the Closing Statement, such Representative Party shall deliver to the CFO privileges and the other Representative Party a statement setting forth its objections thereto (in reasonable detail) (an “Objection Statement”immunities of arbitrators). If an Objection Statement is not delivered by a Representative Party within thirty (30) days following the date of delivery The fees and disbursements of the Closing Statement, then such Representative Party will have waived its right to contest the Closing Statement, all determinations and calculations set forth therein, and the resulting Merger Consideration set forth therein. If an Objection Statement is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative Independent Accounting Firm shall negotiate in good faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative and the Purchaser Representative do not reach a final resolution within such twenty (20) day period, then upon the written request of either Representative Party (the date of receipt of such notice by the other Party, the “Independent Expert Notice Date”), the Representative Parties will refer the dispute to the Independent Expert for final resolution of the dispute in accordance with Section 1.15(c). For purposes hereof, the “Independent Expert” shall mean a mutually acceptable independent (i.e., no prior material business relationship with any party for the prior two (2) years) accounting firm appointed by the Purchaser Representative be allocated between Buyer and the Seller Representative, which appointment will be made no later than ten (10) days after in the same proportion that the aggregate amount of the Disputed Items so submitted to the Independent Expert Notice Date); provided, Accounting Firm that if is unsuccessfully disputed by each such Party (as finally determined by the Independent Expert does not accept its appointment or Accounting Firm) bears to the total amount of such remaining Disputed Items so submitted. For example, if it is Xxxxx’s position that the Purchaser Representative adjustment owed is $300, it is the Seller Representative’s position that the adjustment owed is $100 and the Independent Accounting Firm’s finding is that the adjustment owed is $250, then Buyer shall pay 25% (300-250 / 300-100) of the Independent Accounting Firm’s fees and expenses and the Seller Representative cannot agree shall pay 75% (250-100 / 300-100) of the Independent Accounting Firm’s fees and expenses; provided, however, that in the event the Seller Representative is required to pay any such fees and expenses (or portion thereof), such amount shall be funded solely from the Adjustment Escrow Funds, and, for the avoidance of doubt, the Adjustment Escrow Funds shall be the sole source of recovery for any amounts owed by the Seller Representative under this Section 2.10(c), with any balance borne by the Buyer. (d) The items set forth on the Closing Statement and the Merger Consideration and all components thereof shall be deemed final for the purposes of this Section 2.10 upon the earlier of (i) notification by Seller Representative to Buyer in writing that it agrees with the Closing Statement and will not dispute same or, subject to Section 2.10(b), the failure of the Seller Representative to notify Buyer of a dispute within sixty (60) days of the Seller Representative’s receipt of the deliverables specified in Section 2.10(a), (ii) the resolution of all Disputed Items pursuant to Section 2.10(c) by Buyer and the Seller Representative and (iii) the resolution of all remaining Disputed Items pursuant to Section 2.10(c) by the Independent ExpertAccounting Firm (which shall constitute an arbitral award upon which a judgment may be entered by a court having jurisdiction thereover). The final determinations of such matters shall be non-appealable and incontestable by the Parties and each of their respective Affiliates and successors and assigns and not subject to collateral attack for any reason other than fraud in connection with the matters contemplated by this Section 2.10. (e) In the event that the Merger Consideration as finally determined in accordance with this Section 2.10 is more than the Estimated Merger Consideration, then promptly after such final determination (but, in either case any event, within twenty three (203) days after Business Days thereof), (i) (A) Buyer shall, or shall cause the Independent Expert Notice DateSurviving Company to, either Representative Party may require, by written notice pay to the other Paying Agent an amount equal to the aggregate Pro Rata Share of all Stockholders (solely in respect of their Company Common Stock) of such difference for further distribution to the Stockholders and (B) the balance of such difference shall be paid to the holders of Vested Eligible Options and the RSU Holders in accordance with Sections 2.9(d) and 2.9(e), and (ii) the Seller Representative Partyand Buyer shall execute and deliver a joint written instruction to the Escrow Agent to release (A) an amount equal to the aggregate Pro Rata Share of all Stockholders (solely in respect of their Company Common Stock) of the Adjustment Escrow Funds to the Paying Agent for further distribution to the Stockholders and (B) the balance of the Adjustment Escrow Funds to the Surviving Company (or its applicable employing Subsidiary) for further distribution to the holders of Vested Eligible Options and the RSU Holders in accordance with Sections 2.9(d)) and 2.9(e). If the Merger Consideration as finally determined in accordance with this Section 2.10 is less than the Estimated Merger Consideration, then promptly after such final determination (but, in any event, within three (3) Business Days thereof), the Seller Representative and Buyer shall cause the Escrow Agent to release an amount that is equal to the Independent Expert be selected lesser of (a) the then remaining Adjustment Escrow Funds and (b) such difference to Buyer, or at Buyer’s direction, to the Surviving Company, in each case, from the Adjustment Escrow Funds. Any Adjustment Escrow Funds remaining following the payments contemplated by the New York City Regional Office last sentence of Section 2.10(c) and the immediately preceding sentence shall be released as follows: (a) an amount equal to the aggregate Pro Rata Share of all Stockholders (solely in respect of their Company Common Stock) of such remaining Adjustment Escrow Funds shall be released to the Paying Agent for further distribution to the Stockholders and (b) the balance of such remaining Adjustment Escrow Funds shall be released to the Surviving Company for further distribution to the holders of Vested Eligible Options and the RSU Holders in accordance with Sections 2.9(d) and 2.9(e), in each case, promptly following the final determination of the AAA Merger Consideration in accordance with this Section 2.10 (but, in any event, within three (3) Business Days thereof) and the Seller Representative and Buyer shall execute and deliver a joint written instruction to the Escrow Agent to effect such releases. For the avoidance of doubt, the Adjustment Escrow Funds shall be the sole source of recovery for any amounts owed to Buyer under this Section 2.10(e). All payments contemplated by this Section 2.10(e) shall be made by wire transfer in immediately available funds to the applicable payee. With respect to all amounts provided to the Paying Agent for further distribution to the Stockholders pursuant to this Section 2.10(e), the Seller Representative and Buyer shall deliver joint written instructions in accordance with the AAAPaying Agent Agreement to the Paying Agent to, promptly following receipt of such amounts, pay to each Stockholder (solely in respect of their Company Common Stock) who has delivered to the Company a completed Letter of Transmittal as of such time, the aggregate Pro Rata Share of such Stockholder (solely in respect of their Company Common Stock) with respect to such amounts, which such amount shall be payable by wire transfer of immediately available funds (or by check if so elected in such Stockholder’s procedures. Letter of Transmittal) to the account or address designated in such Stockholder’s Letter of Transmittal. (f) The parties Parties agree that the Independent Expert Closing Statement (and the items reflected thereon), the Merger Consideration and all components thereof and the estimates thereof delivered pursuant to Section 2.9(b) shall be prepared, and this Agreement shall otherwise be interpreted, so that the Company and its Subsidiaries are presented on a consolidated basis (including the full share of Company Cash, Company Debt, current assets and current liabilities of ABC Consulting S.A., a company existing under the laws of Argentina (“ABC Consulting”)) and no asset, liability, Loss, or other item is double-counted against any Party hereunder and shall not include any changes in assets or liabilities as a result of purchase or other non-cash accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated hereby or the financing thereof. The Parties further agree that the purpose of preparing the Closing Statement (and the items reflected thereon) and determining the Net Working Capital is to measure variations in the components taken into consideration in determining the estimates delivered pursuant to Section 2.9(b) compared to the actual values, and, without limiting the generality of the foregoing, such process is not intended to permit the introduction of, or alteration of, components, judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies different from those described in the Accounting Principles or used to prepare the Estimated Closing Statement or to calculate the Estimated Merger Consideration and shall also disregard any change, circumstance, act, decision, fact or development occurring after the Effective Time for purposes of establishing or altering a reserve or otherwise. Further, normal year-end closing procedures will be applied when calculating the Closing Statement and the estimates thereof delivered pursuant to Section 2.9(b). (g) Any payments made pursuant to this Section 2.10 (including amounts released from the Adjustment Escrow Funds pursuant to this Section 2.10) shall be deemed to be independent even though a Party or its Affiliates may, in the future, designate the Independent Expert to resolve disputes of the types described in this Section 1.15. The Parties acknowledge that any information provided pursuant to this Section 1.15 will be subject an adjustment to the confidentiality obligations of Section 5.15Merger Consideration for all purposes (including Tax purposes), and the parties agree to file, or cause to be filed, their Tax Returns consistently with such characterization.

Merger Consideration Adjustment. (a) Within forty five ninety (4590) days after the Closing Date, the Purchaser’s Chief Financial Officer (the “CFO”) shall deliver to the Purchaser Representative and the Seller Representative a statement (the “Closing Statement”) setting forth (i) a consolidated balance sheet of the Target Companies as of the Reference Time and (ii) a good faith calculation of the Closing Net Debt Indebtedness and Net Working Capital, in each case, as of the Reference Time, and the resulting Merger ConsiderationConsideration using the formula in Section 1.7 and in reasonable detail including for each component thereof, along with the amount owed to each creditor of the Surviving Company, and bank statements and other evidence reasonably necessary to confirm such calculations. The Closing Statement shall be prepared, and the Closing Net Debt Indebtedness and Net Working Capital and the resulting Merger Consideration and Stockholder Merger Consideration shares shall be determined in accordance with the Accounting Principles and otherwise in accordance with this Agreement. (b) After delivery of the Closing Statement, each of the Seller Representative and the Purchaser Representative, and their respective Representatives on their behalvesbehalf, shall be permitted reasonable access (with the right to make copies and including by electronic delivery of documents) to the books, records, working papers, files, facilities and personnel of the Target Companies relating to the preparation of the Closing Statement. The Seller Representative and the Purchaser Representative, and their respective Representatives on their behalvesbehalf, may make inquiries of the CFO and related Purchaser and Target Company personnel and advisors regarding questions concerning or disagreements with the Closing Statement arising in the course of their review thereof, and Purchaser and the Company shall provide reasonable cooperation in connection therewith. If either the Seller Representative or the Purchaser Representative (each, a “Representative Party”) has any objections to the Closing Statement, such Representative Party shall deliver to the CFO and the other Representative Party a statement setting forth its objections thereto (in reasonable detail) (an “Objection Statement”). If an Objection Statement is not delivered by a Representative Party within thirty (30) days following the date of delivery of the Closing Statement, then such Representative Party will have waived its right to contest the Closing Statement, all determinations and calculations set forth therein, and the resulting Merger Consideration set forth therein. If an Objection Statement is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative shall negotiate in good faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative and the Purchaser Representative do not reach a final resolution within such twenty (20) day period, then upon the written request of either Representative Party (the date of receipt of such notice by the other Party, the “Independent Expert Notice Date”), the Representative Parties will refer the dispute to the Independent Expert for final resolution of the dispute in accordance with Section 1.15(c). For purposes hereof, the “Independent Expert” shall mean a mutually acceptable independent (i.e., no prior material business relationship with any party Party for the prior two (2) years) accounting firm appointed by the Purchaser Representative and the Seller Representative, which appointment will be made no later than ten (10) days after the Independent Expert Notice Date); provided, that if the Independent Expert does not accept its appointment or if the Purchaser Representative and the Seller Representative cannot agree on the Independent Expert, in either case within twenty (20) days after the Independent Expert Notice Date, either Representative Party may require, by written notice to the other Representative Party, that the Independent Expert be selected by the New York City Washington, D.C. Regional Office of the AAA in accordance with the AAA’s procedures. The parties Parties agree that the Independent Expert will be deemed to be independent even though a Party or its Affiliates may, in the future, designate the Independent Expert to resolve disputes of the types described in this Section 1.15. The Parties acknowledge that any information provided pursuant to this Section 1.15 will be subject to the confidentiality obligations of Section 5.15.

Merger Consideration Adjustment. (a) Within forty five (45) days after the Closing Date, the Purchaser’s Chief Financial Officer (the “CFO”) shall deliver to the Purchaser Representative and the Seller Representative a statement (the “Closing Statement”) setting forth (i) a consolidated balance sheet of the Target Companies as of the Reference Time and (ii) a good faith calculation of the Net Debt as of the Reference Time, and the resulting Merger Consideration. The Closing Statement shall be prepared, and the Net Debt and the resulting Merger Consideration and Stockholder Merger Consideration shall be determined in accordance with the Accounting Principles and otherwise in accordance with this Agreement. (b) After the delivery of the Closing Statement, each of the Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, (i) shall be permitted reasonable access to the books, records, working papers, files, facilities and personnel of the Target Companies relating to the preparation of the Closing Statement. The Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, (ii) may make inquiries of the CFO and related Purchaser and Target Company personnel and advisors regarding questions concerning or disagreements with the Closing Statement arising in the course of their review thereof, and Purchaser and the Company shall provide reasonable cooperation in connection therewith. If either the Seller Representative or the Purchaser Representative (each, a “Representative Party”) has any objections to the Closing Statement, such Representative Party shall deliver to the CFO and the other Representative Party a statement setting forth its objections thereto (in reasonable detail) (an “Objection Statement”). If an Objection Statement is not delivered by a Representative Party within thirty (30) days following the date of delivery of the Closing Statement, then such Representative Party will have waived its right to contest the Closing Statement, all determinations and calculations set forth therein, and the resulting Merger Consideration set forth therein. If an Objection Statement is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative shall negotiate in good faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative and the Purchaser Representative do not reach a final resolution within such twenty (20) day period, then upon the written request of either Representative Party (the date of receipt of such notice by the other Party, the “Independent Expert Notice Date”), the Representative Parties will refer the dispute to the Independent Expert for final resolution of the dispute in accordance with Section 1.15(c1.14(c). For purposes hereof, the “Independent Expert” shall mean a mutually acceptable independent (i.e., no prior material business relationship with any party for the prior two (2) years) accounting firm appointed by the Purchaser Representative and the Seller Representative, which appointment will be made no later than ten (10) days after the Independent Expert Notice Date); provided, that if the Independent Expert does not accept its appointment or if the Purchaser Representative and the Seller Representative cannot agree on the Independent Expert, in either case within twenty (20) days after the Independent Expert Notice Date, either Representative Party may require, by written notice to the other Representative Party, that the Independent Expert be selected by the New York City Regional Office of the AAA in accordance with the AAA’s procedures. The parties agree that the Independent Expert will be deemed to be independent even though a Party or its Affiliates may, in the future, designate the Independent Expert to resolve disputes of the types described in this Section 1.151.14. The Parties acknowledge that any information provided pursuant to this Section 1.15 1.14 will be subject to the confidentiality obligations of Section 5.15.

Merger Consideration Adjustment. (i) If the Final Closing Balance Sheet reflects indebtedness of DDI in excess of the difference of (a) Within forty five (45) days after $1 million plus DDI's aggregate accounts receivable created during the period beginning April 8, 1998 and ending on the Closing DateDate (such period, the Purchaser’s Chief Financial Officer "Pre-Merger Period"), less (b) any payments made against accounts payable shown on DDI's payables listing dated April 8, 1999 during the “CFO”Pre-Merger Period (such payments, the "Restricted Payments", and such excess DDI indebtedness, the "Excess"), then the Primary Consideration shall be reduced dollar-for-dollar by the amount of the Excess (applying the Excess first against the Primary Cash Consideration until it is reduced to zero, then if necessary against the Primary Stock Consideration at a valuation of $7.00 per share). If the Excess amount exceeds the aggregate Primary Consideration, it shall be grounds for termination of this Agreement pursuant to Section 8.1. For purposes of determining the Excess amount, indebtedness appearing on the Final Closing Balance Sheet representing amounts owing Datum under the Bridge Loan Agreement (as defined in Section 6.9 below) shall deliver not be included, except if and to the Purchaser Representative extent any bridge loan proceeds ("Advances") were used to make Restricted Payments in which case such Advances and accrued unpaid interest thereon shall be included as DDI indebtedness in the Seller Representative a statement (the “Closing Statement”) setting forth (i) a consolidated balance sheet calculation of the Target Companies as of the Reference Time and Excess. (ii) a good faith calculation The parties acknowledge and agree that (A) the part, if any, of the Net Debt as of the Reference Time, and the resulting Merger Consideration. The Closing Statement shall be prepared, and the Net Debt and the resulting Merger Consideration and Stockholder Merger Consideration shall be determined in accordance with the Accounting Principles and otherwise in accordance with this Agreement. (b) After delivery of the Closing Statement, each of the Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, shall be permitted reasonable access to the books, records, working papers, files, facilities and personnel of the Target Companies relating to the preparation of the Closing Statement. The Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, may make inquiries of the CFO and related Purchaser and Target Company personnel and advisors regarding questions concerning or disagreements with the Closing Statement arising in the course of their review thereof, and Purchaser and the Company shall provide reasonable cooperation in connection therewith. If either the Seller Representative or the Purchaser Representative (each, a “Representative Party”) has any objections to the Closing Statement, such Representative Party shall deliver to the CFO and the other Representative Party a statement setting forth its objections thereto (in reasonable detail) (an “Objection Statement”). If an Objection Statement Advances which is not delivered by a Representative Party within thirty (30) days following the date of delivery of the Closing Statement, then such Representative Party will have waived its right to contest the Closing Statement, all determinations and calculations set forth therein, and the resulting Merger Consideration set forth therein. If an Objection Statement is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative shall negotiate in good faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative and the Purchaser Representative do not reach a final resolution within such twenty (20) day period, then upon the written request of either Representative Party (the date of receipt of such notice by the other Party, the “Independent Expert Notice Date”), the Representative Parties will refer the dispute to the Independent Expert for final resolution of the dispute be forgiven in accordance with Section 1.15(c). For purposes hereof4(c) of the Bridge Financing Agreement, but is to be due and payable, with accrued interest thereon, on the “Independent Expert” Closing Date shall mean a mutually acceptable independent (i.e., no prior material business relationship with any party be deemed for the prior two (2) years) accounting firm appointed by the Purchaser Representative purposes of this Agreement and the Seller RepresentativeBridge Financing Agreement to equal the Restricted Payments, which appointment will be made no later than ten (10) days after the Independent Expert Notice Date); provided, that if the Independent Expert does not accept its appointment or if the Purchaser Representative and the Seller Representative cannot agree on the Independent Expert, in either case within twenty (20) days after the Independent Expert Notice Date, either Representative Party may require, by written notice DDI's obligations with respect to the other Representative Party, that the Independent Expert be selected by the New York City Regional Office of the AAA in accordance with the AAA’s procedures. The parties agree that the Independent Expert will such indebtedness shall be deemed to be independent even though a Party or its Affiliates may, satisfied in full by the future, designate adjustment made to the Independent Expert to resolve disputes of the types described in this Section 1.15. The Parties acknowledge that any information provided Primary Consideration pursuant to this Section 1.15 will 2.3(b); (B) that such adjustment shall be subject deemed to have been made as of the confidentiality obligations Closing Date; (C) Datum has extended Fifty Thousand Dollars ($50,000) more in Advances to DDI than the maximum "Loan Amount" provided for in the Bridge Financing Agreement, and the principal amount of Section 5.15the Advances outstanding thereunder on the date hereof equals Four Hundred Fifty Thousand Dollars ($450,000); and (D) that the Bridge Financing Agreement is hereby amended by Datum and DDI to incorporate the foregoing acknowledgements and agreements as though originally incorporated into the terms thereof.