Common use of Post-Closing Merger Consideration Adjustment and Payments Clause in Contracts

Post-Closing Merger Consideration Adjustment and Payments. (a) As promptly as practicable, but in no event later than sixty days following the Closing, Parent shall in good faith prepare and deliver to the Securityholders’ Representative a written statement (the “Closing Statement”), based upon the books and records of the Company and its Subsidiaries, which shall set forth Parent’s calculation of (i) Working Capital, which shall be based exclusively on the facts and circumstances as they exist as of the close of business on the day immediately preceding the Closing Date and shall exclude the effects of any event, act, change in circumstance or similar development arising or occurring thereafter (it being understood and agreed that Working Capital shall be used to measure changes in Working Capital and not as a form of indemnification and in furtherance of the foregoing, to the extent Parent asserts there is a current liability under this Section 2.06 that was not reflected in the calculation of the Target Working Capital, the Target Working Capital shall be recalculated in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B to reflect such current liability to the extent such current liability is included in the calculation of Final Working Capital), (ii) the adjustments to the Target Working Capital pursuant to clause (i) above and the resultant adjustments to Estimated Working Capital (which shall be recalculated to reflect such adjustments), (iii) Closing Date Funded Indebtedness, (iv) Unpaid Company Transaction Expenses, (v) Closing Date Cash and Cash Equivalents and (vi) the Final Merger Consideration based upon such items. No actions taken by Parent on its own behalf or on behalf of the Surviving Corporation or its Subsidiaries, at or following the Closing shall be given effect for purposes of determining the Closing Working Capital. (b) If Parent’s calculation of the Adjustment Amount is positive, (i) Parent shall immediately pay to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), such positive Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06) and (ii) Parent and the Securityholders’ Representative shall immediately deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release the entire Adjustment Escrow Amount to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)). If Parent’s calculation of the Adjustment Amount is negative but less than the Adjustment Escrow Amount, Parent and the Securityholders’ Representative shall immediately deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release to the Securityholder’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), an amount equal to the excess of the Adjustment Escrow Amount over Parent’s calculation of the Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06). (c) After receipt of the Closing Statement, the Securityholders’ Representative and its Representatives shall have reasonable access to all relevant books and records (including accountant work papers), accountants and employees of the Surviving Corporation solely for the purpose of reviewing the Closing Statement in accordance with this Agreement and to the extent reasonably necessary to complete its review of the Closing Statement in a manner not to interfere unreasonably with the conduct of Parent’s or the Surviving Corporation’s business. If, within 60 days following the delivery of the Closing Statement, the Securityholders’ Representative has not given Parent notice of its objection to any item in the Closing Statement reasonably detailing the basis of such objection (an “Objection Notice”), then the Closing Statement shall be deemed final and binding on Parent, the Surviving Corporation and the Securityholders’ Representative (on behalf of all Securityholders). If the Securityholders’ Representative delivers an Objection Notice, then Parent and the Securityholders’ Representative shall consult in good faith to resolve the disputed items set forth in the Objection Notice and, if any disputed items have not been resolved within thirty days following delivery of such notice, from and after such time either the Securityholders’ Representative or Parent may submit the remaining disputed items to the New York, New York office of Xxxxx Xxxxxxxx LLP or, if such firm is unable to serve in such capacity, to such other nationally recognized independent accounting firm that is mutually agreeable to the Securityholders’ Representative and Parent (the “Accountant”) or, if no such agreement can be reached, the Securityholders’ Representative and Parent each shall, within 10 days thereof, select a candidate for the Accountant and the two candidates so selected shall promptly select a third nationally recognized independent accounting firm which shall be appointed as the Accountant. The scope of the disputes to be resolved by the Accountant shall be limited to fixing mathematical errors and determining whether the items in dispute were determined in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B without regard to materiality and the Accountant is not to make any other determination and shall act as an arbitrator and not as an expert. If any items in dispute are submitted to the Accountant for resolution: (x) Parent and the Securityholders’ Representative shall use their respective reasonable efforts to cause the Accountant to resolve all remaining disagreements with respect to the Closing Statement as soon as practicable but in any event shall direct the Accountant to render a determination within 90 days after its retention; (y) Parent and the Securityholders’ Representative shall furnish to the Accountant and each other such work papers and other documents and information relating solely to the disputed issues as the Accountant may request and are available to that party (including, in the case of Parent, the Surviving Corporation or its accountants), and shall be afforded the opportunity to present to the Accountant any materials relating to the determination and to discuss the determination with the Accountant, provided that copies of all such materials are concurrently provided to the other party and that such discussions may only occur in the presence (including by telephone) of the other party, provided further that the Accountant shall consider only those items and amounts which are identified as being in dispute; and (z) the determination by the Accountant of the disputed items in the Closing Statement, as shall be set forth in a notice delivered to both parties by the Accountant, shall be binding and conclusive on the parties. In resolving any disputed item, the Accountant may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees of the Accountant for such determination shall be borne by Parent, on the one hand, and the Securityholders, on the other hand, in proportion to the portion of the aggregate amount in dispute that is finally resolved by the Accountant in a manner adverse to such party. For example, if Parent claims the appropriate adjustments are $1,000 less than the amount determined by the Securityholders’ Representative, and the Securityholders’ Representative contests $500 of the amount claimed by Parent, and if the Accountant ultimately resolves the dispute by awarding Parent $300 of the $500 contested, then the costs and expenses of the Accountant will be allocated 60% (i.e., 300/500) to the Securityholders and 40% (i.e., 200/500) to Parent. (d) The Closing Date Merger Consideration shall be adjusted as follows (without duplication): (i)(A) increased by the amount, if any, by which the Working Capital, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Working Capital”), is greater than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d) or (B) reduced by the amount, if any, by which the Final Working Capital is less than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d); (ii)(A) reduced by the amount, if any, by which the Closing Date Funded Indebtedness, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Funded Indebtedness”) is greater than the Estimated Closing Date Funded Indebtedness or (B) increased by the amount, if any, by which the Final Funded Indebtedness is less than the Estimated Closing Date Funded Indebtedness; (iii)(A) reduced by the amount, if any, by which the Unpaid Company Transaction Expenses, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Unpaid Company Transaction Expenses”) are greater than the Estimated Unpaid Company Transaction Expenses or (B) increased by the amount, if any, by which the Final Unpaid Company Transaction Expenses are less than the Estimated Unpaid Company Transaction Expenses; and/or (iv)(A) increased by the amount, if any, by which the Closing Date Cash and Cash Equivalents, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Cash and Cash Equivalents”) are greater than the Estimated Cash and Cash Equivalents or (B) reduced by the amount, if any, by which the Final Cash and Cash Equivalents are less than the Estimated Cash and Cash Equivalents. (e) No later than the second Business Day following the final determination of the Adjustment Amount; (i) if the Adjustment Amount is positive, (A) Parent and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement; (B) with respect to each Stockholder who shall have delivered to the Company, on or prior to such date, a completed Letter of Transmittal, Parent shall pay, or shall cause the Surviving Corporation to pay, an amount equal to the product of the number of Outstanding Shares held by such Stockholder and the Adjustment Amount Per Share, which amount shall be payable by wire transfer of immediately available funds to the account designated in such Stockholder’s Letter of Transmittal; and (C) with respect to each holder of an In-the-Money Option who has delivered to the Company, on or prior to such date, a completed Option Surrender Form, Parent shall cause the Surviving Corporation to pay to each such Optionholder an amount equal to the product of the number shares of Company Common Stock that were issuable if all of the In-the-Money Options held by such holder were exercised in full and the Adjustment Amount Per Share, less any required withholding Taxes and without interest thereon; provided that any amounts previously paid by Parent pursuant to Section 2.06(b)(i) shall be credited against any amounts owed pursuant to this Section 2.06(e)(i)(B) and Section 2.06(e)(i)(C) and Parent shall not have any liability for any portion of the Adjustment Amount payable under 2.06(b)(i), 2.06(e)(i)(B) and 2.06(e)(i)(C) in excess of $10,000,000; or (ii) if the Adjustment Amount is negative, then Parent and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the Adjustment Amount to be paid to the Surviving Corporation solely and exclusively from the Adjustment Escrow Account (up to a maximum amount equal to the then remaining Adjustment Escrow Amount and the Securityholders shall not have any liability for any portion of the Adjustment Amount in excess of the then remaining amount in the Adjustment Escrow Account), and any portion of the Adjustment Escrow Amount remaining following such payment to the Surviving Corporation shall be released to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement; or (iii) if the Adjustment Amount is zero, Parent and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement. (f) The Adjustment Amount shall be treated as an adjustment to the Closing Date Merger Consideration for income tax purposes. (g) From and after the Closing Date: (i) with respect to each Stockholder who shall not have delivered to the Company, on or prior to the Closing Date, a Letter of Transmittal, Parent shall, promptly (but in no event later than five Business Days) following such Stockholder’s delivery to the Company of a completed Letter of Transmittal, pay, or cause the Surviving Corporation to pay, all amounts that would previously have been payable with respect to such Outstanding Shares pursuant to this Article 2 had such Letter of Transmittal been delivered on or prior to the Closing Date; and (ii) with respect to each holder of an In-the-Money Option who shall not have delivered to the Company, on or prior to the Closing Date, an Option Surrender Form, Parent shall, promptly (but in no event later than five Business Days) following such holder’s delivery to the Surviving Corporation of a completed Option Surrender Form, cause the Surviving Corporation to pay, to such holder, all amounts that would previously have been payable with respect to such In-the-Money Option pursuant to this Article 2 had such Option Surrender Form been delivered on or prior to the Closing Date, provided, however, that if any holder of an In-the-Money Option has not delivered an Option Surrender Form to the Surviving Corporation prior to the time set forth in Section 2.05(i), then the cash otherwise payable to the holder of such In-the-Money Options shall become the property of Parent, free and clear of all claims and interest of any Person previously entitled thereto.

Post-Closing Merger Consideration Adjustment and Payments. (a) As promptly as practicable, but in no event later than sixty ninety (90) days following the Closing, Parent Purchaser shall in good faith prepare and deliver to the Securityholders’ Seller Representative a written statement (the “Closing Statement”), based upon the books and records of the Company and its SubsidiariesGroup, which shall set forth ParentPurchaser’s calculation of (i) Working Capital, which shall be based exclusively on the facts and circumstances as they exist as of the close of business on the day immediately preceding the Closing Date Cash and shall exclude the effects of any event, act, change in circumstance or similar development arising or occurring thereafter (it being understood and agreed that Working Capital shall be used to measure changes in Working Capital and not as a form of indemnification and in furtherance of the foregoing, to the extent Parent asserts there is a current liability under this Section 2.06 that was not reflected in the calculation of the Target Working Capital, the Target Working Capital shall be recalculated in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B to reflect such current liability to the extent such current liability is included in the calculation of Final Working Capital)Cash Equivalents, (ii) the adjustments to the Target Working Capital pursuant to clause (i) above and the resultant adjustments to Estimated Working Capital (which shall be recalculated to reflect such adjustments)Capital, (iii) Closing Date Funded Indebtedness, (iv) Unpaid Company Transaction Expenses, Selling Expenses and (v) Closing Date Cash and Cash Equivalents and (vi) the Final Merger Consideration based upon such items. No actions taken by Parent on its own behalf or on behalf The parties acknowledge that the sole purpose of the Surviving Corporation or its Subsidiaries, at or following determination of Working Capital in the Closing shall Statement is to adjust the Merger Consideration to reflect changes in the Working Capital, and such change can only be given effect for purposes measured if the calculation is done using the Accounting Methodology, consistent with the preparation of determining the Closing Target Working Capital. (b) If ParentDuring the thirty (30)-day period following the Seller Representative’s calculation of the Adjustment Amount is positive, (i) Parent shall immediately pay to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), such positive Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06) and (ii) Parent and the Securityholders’ Representative shall immediately deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release the entire Adjustment Escrow Amount to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)). If Parent’s calculation of the Adjustment Amount is negative but less than the Adjustment Escrow Amount, Parent and the Securityholders’ Representative shall immediately deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release to the Securityholder’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), an amount equal to the excess of the Adjustment Escrow Amount over Parent’s calculation of the Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06). (c) After receipt of the Closing StatementStatement and following execution of customary non-reliance, confidentiality or similar agreements, the Securityholders’ Seller Representative and its Representatives representatives shall have be permitted reasonable access access, during regular business hours and upon prior reasonable written request, to, and be allowed to make copies of, all relevant books and records (including accountant work papers), ) and reasonable access to accountants and employees of the Surviving Corporation solely for the purpose of reviewing the Closing Statement in accordance with this Agreement and Company Group to the extent reasonably necessary to complete its their review of the Closing Statement in a manner not to interfere unreasonably with the conduct of Parent’s or the Surviving Corporation’s business. If, within 60 days following the delivery of the Closing Statement, and Purchaser shall, and shall cause the Securityholders’ Company Group to, reasonably cooperate with the Seller Representative has not given Parent notice of and its objection to any item representatives in connection with their review. Following the Closing Statement reasonably detailing the basis of such objection (an “Objection Notice”)Closing, then the Closing Statement shall be deemed final and binding on Parent, the Surviving Corporation Purchaser and the Securityholders’ Representative (on behalf of all Securityholders). If the Securityholders’ Representative delivers an Objection Notice, then Parent and the Securityholders’ Representative Company Group shall consult in good faith to resolve the disputed items set forth in the Objection Notice and, if not take any disputed items have not been resolved within thirty days following delivery of such notice, from and after such time either the Securityholders’ Representative or Parent may submit the remaining disputed items to the New York, New York office of Xxxxx Xxxxxxxx LLP or, if such firm is unable to serve in such capacity, to such other nationally recognized independent accounting firm that is mutually agreeable to the Securityholders’ Representative and Parent (the “Accountant”) or, if no such agreement can be reached, the Securityholders’ Representative and Parent each shall, within 10 days thereof, select a candidate for the Accountant and the two candidates so selected shall promptly select a third nationally recognized independent accounting firm which shall be appointed as the Accountant. The scope of the disputes to be resolved by the Accountant shall be limited to fixing mathematical errors and determining whether the items in dispute were determined in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B without regard to materiality and the Accountant is not to make any other determination and shall act as an arbitrator and not as an expert. If any items in dispute are submitted to the Accountant for resolution: (x) Parent and the Securityholders’ Representative shall use their respective reasonable efforts to cause the Accountant to resolve all remaining disagreements action with respect to the accounting books and records on which the Closing Statement as soon as practicable but in any event shall direct is to be based that would intentionally obstruct or prevent the Accountant to render a determination within 90 days after its retention; (y) Parent preparation of the Closing Statement and the Securityholders’ Representative shall furnish to the Accountant and each other such work papers and other documents and information relating solely to the disputed issues as the Accountant may request and are available to that party (including, in the case of Parent, the Surviving Corporation or its accountants), and shall be afforded the opportunity to present to the Accountant any materials relating to the determination and to discuss the determination with the Accountant, provided that copies of all such materials are concurrently provided to the other party and that such discussions may only occur in the presence (including by telephone) of the other party, provided further that the Accountant shall consider only those items and amounts which are identified as being in dispute; and (z) the determination by the Accountant of the disputed items in the Closing Statement, as shall be determinations set forth in a notice delivered to both parties by the Accountant, shall be binding and conclusive on the parties. In resolving any disputed item, the Accountant may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees of the Accountant for such determination shall be borne by Parent, on the one hand, and the Securityholders, on the other hand, in proportion to the portion of the aggregate amount in dispute that is finally resolved by the Accountant in a manner adverse to such party. For example, if Parent claims the appropriate adjustments are $1,000 less than the amount determined by the Securityholders’ Representative, and the Securityholders’ Representative contests $500 of the amount claimed by Parent, and if the Accountant ultimately resolves the dispute by awarding Parent $300 of the $500 contested, then the costs and expenses of the Accountant will be allocated 60% (i.e., 300/500) to the Securityholders and 40% (i.e., 200/500) to Parent. (d) The Closing Date Merger Consideration shall be adjusted as follows (without duplication): (i)(A) increased by the amount, if any, by which the Working Capital, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Working Capital”), is greater than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d) or (B) reduced by the amount, if any, by which the Final Working Capital is less than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d); (ii)(A) reduced by the amount, if any, by which the Closing Date Funded Indebtedness, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Funded Indebtedness”) is greater than the Estimated Closing Date Funded Indebtedness or (B) increased by the amount, if any, by which the Final Funded Indebtedness is less than the Estimated Closing Date Funded Indebtedness; (iii)(A) reduced by the amount, if any, by which the Unpaid Company Transaction Expenses, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Unpaid Company Transaction Expenses”) are greater than the Estimated Unpaid Company Transaction Expenses or (B) increased by the amount, if any, by which the Final Unpaid Company Transaction Expenses are less than the Estimated Unpaid Company Transaction Expenses; and/or (iv)(A) increased by the amount, if any, by which the Closing Date Cash and Cash Equivalents, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Cash and Cash Equivalents”) are greater than the Estimated Cash and Cash Equivalents or (B) reduced by the amount, if any, by which the Final Cash and Cash Equivalents are less than the Estimated Cash and Cash Equivalents. (e) No later than the second Business Day following the final determination of the Adjustment Amount; (i) if the Adjustment Amount is positive, (A) Parent and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement; (B) with respect to each Stockholder who shall have delivered to the Company, on or prior to such date, a completed Letter of Transmittal, Parent shall pay, or shall cause the Surviving Corporation to pay, an amount equal to the product of the number of Outstanding Shares held by such Stockholder and the Adjustment Amount Per Share, which amount shall be payable by wire transfer of immediately available funds to the account designated in such Stockholder’s Letter of Transmittal; and (C) with respect to each holder of an In-the-Money Option who has delivered to the Company, on or prior to such date, a completed Option Surrender Form, Parent shall cause the Surviving Corporation to pay to each such Optionholder an amount equal to the product of the number shares of Company Common Stock that were issuable if all of the In-the-Money Options held by such holder were exercised in full and the Adjustment Amount Per Share, less any required withholding Taxes and without interest thereon; provided that any amounts previously paid by Parent pursuant to Section 2.06(b)(i) shall be credited against any amounts owed pursuant to this Section 2.06(e)(i)(B) and Section 2.06(e)(i)(C) and Parent shall not have any liability for any portion of the Adjustment Amount payable under 2.06(b)(i), 2.06(e)(i)(B) and 2.06(e)(i)(C) in excess of $10,000,000; or (ii) if the Adjustment Amount is negative, then Parent and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the Adjustment Amount to be paid to the Surviving Corporation solely and exclusively from the Adjustment Escrow Account (up to a maximum amount equal to the then remaining Adjustment Escrow Amount and the Securityholders shall not have any liability for any portion of the Adjustment Amount in excess of the then remaining amount in the Adjustment Escrow Account), and any portion of the Adjustment Escrow Amount remaining following such payment to the Surviving Corporation shall be released to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement; or (iii) if the Adjustment Amount is zero, Parent and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement2.12. (f) The Adjustment Amount shall be treated as an adjustment to the Closing Date Merger Consideration for income tax purposes. (g) From and after the Closing Date: (i) with respect to each Stockholder who shall not have delivered to the Company, on or prior to the Closing Date, a Letter of Transmittal, Parent shall, promptly (but in no event later than five Business Days) following such Stockholder’s delivery to the Company of a completed Letter of Transmittal, pay, or cause the Surviving Corporation to pay, all amounts that would previously have been payable with respect to such Outstanding Shares pursuant to this Article 2 had such Letter of Transmittal been delivered on or prior to the Closing Date; and (ii) with respect to each holder of an In-the-Money Option who shall not have delivered to the Company, on or prior to the Closing Date, an Option Surrender Form, Parent shall, promptly (but in no event later than five Business Days) following such holder’s delivery to the Surviving Corporation of a completed Option Surrender Form, cause the Surviving Corporation to pay, to such holder, all amounts that would previously have been payable with respect to such In-the-Money Option pursuant to this Article 2 had such Option Surrender Form been delivered on or prior to the Closing Date, provided, however, that if any holder of an In-the-Money Option has not delivered an Option Surrender Form to the Surviving Corporation prior to the time set forth in Section 2.05(i), then the cash otherwise payable to the holder of such In-the-Money Options shall become the property of Parent, free and clear of all claims and interest of any Person previously entitled thereto.

Post-Closing Merger Consideration Adjustment and Payments. (a) As promptly as practicable, but in no event later than sixty (60) days following the Closing, Parent Purchaser shall in good faith prepare and deliver to the Securityholders’ Representative a written statement (the “Closing Statement”), based upon the books and records of the Company and its SubsidiariesGroup, which shall set forth ParentPurchaser’s calculation of (i) Working Capital, which shall be based exclusively on the facts and circumstances as they exist as of the close Measurement Time, and shall be calculated without giving effect to the Merger or to other events arising as a result of business the Merger that are not caused by any actions outside the Ordinary Course of Business undertaken unilaterally prior to the Closing on the day immediately preceding the Closing Date and shall exclude the effects of any event, act, change in circumstance or similar development arising or occurring thereafter (it being understood and agreed that Working Capital shall be used to measure changes in Working Capital and not as a form of indemnification and in furtherance part of the foregoing, to the extent Parent asserts there is a current liability under this Section 2.06 that was not reflected in the calculation Company and/or any of the Target Working Capital, the Target Working Capital shall be recalculated in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B to reflect such current liability to the extent such current liability is included in the calculation of Final Working Capital)Securityholders, (ii) the adjustments to the Target Working Capital pursuant to clause (i) above and the resultant adjustments to Estimated Working Capital (which shall be recalculated to reflect such adjustments)Closing Date Indebtedness, (iii) Closing Date Funded IndebtednessSeller Expenses, (iv) Unpaid Company Transaction Expenses, (v) Closing Date Cash and Cash Equivalents and (viv) the Final Merger Consideration based upon such items. No actions taken by Parent on its own behalf or on behalf of the Surviving Corporation or its Subsidiaries, at or following the Closing shall be given effect for purposes of determining the Closing Working Capital. (b) If Parent’s calculation of the Adjustment Amount is positive, (i) Parent shall immediately pay to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), such positive Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06) and (ii) Parent and the Securityholders’ Representative shall immediately deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release the entire Adjustment Escrow Amount to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)). If Parent’s calculation of the Adjustment Amount is negative but less than the Adjustment Escrow Amount, Parent and the Securityholders’ Representative shall immediately deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release to the Securityholder’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), an amount equal to the excess of the Adjustment Escrow Amount over Parent’s calculation of the Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06). (c) After receipt of the Closing Statement, the Securityholders’ Representative and its Representatives advisors and representatives shall have reasonable access to all relevant books and records (including accountant work papers), accountants and employees of the Surviving Corporation solely for the purpose of reviewing the Closing Statement in accordance with this Agreement and Company to the extent reasonably necessary required to complete its review of the Closing Statement in a manner not to interfere unreasonably with the conduct of Parent’s or the Surviving Corporation’s businessStatement. If, within 60 thirty (30) days following the delivery of the Closing Statement, the Securityholders’ Representative has not given Parent Purchaser notice of its objection to any item in the Closing Statement reasonably detailing the basis of such objection (an “Objection Notice”), then the Closing Statement shall be deemed final and binding on ParentPurchaser, the Surviving Corporation Company and the Securityholders’ Representative (on behalf of all Securityholders). If the Securityholders’ Representative delivers an Objection Notice, then Parent Purchaser and the Securityholders’ Representative shall consult in good faith to resolve the disputed items set forth in the Objection Notice and, if any disputed items have not been resolved within thirty (30) days following delivery of such notice, from and after such time either the Securityholders’ Representative or Parent Purchaser may submit the remaining disputed items to the New York, New York office of Xxxxx Xxxxxxxx LLP PricewaterhouseCoopers or, if such firm is unable to serve in such capacity, to such other nationally recognized independent accounting firm public accountant that is mutually agreeable to the Securityholders’ Representative and Parent Purchaser (the “Accountant”) or, if no such agreement can be reached, the Securityholders’ Representative and Parent each shall, within 10 days thereof, select a candidate for the Accountant and the two candidates so selected shall promptly select a third nationally recognized independent accounting firm which shall be appointed as the Accountant. The scope of the disputes to be resolved by the Accountant shall be limited to fixing mathematical errors and determining whether the items in dispute were determined in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B without regard to materiality and the Accountant is not to make any other determination and shall act as an arbitrator and not as an expertresolution. If any items in dispute are submitted to the Accountant for resolution: (x) Parent Purchaser and the Securityholders’ Representative shall use their respective reasonable efforts to cause the Accountant to resolve all remaining disagreements with respect to the Closing Statement as soon as practicable but in any event shall direct the Accountant to render a determination within 90 forty-five (45) days after its retention; (y) Parent Purchaser and the Securityholders’ Representative shall furnish to the Accountant and each other such work papers and other documents and information relating solely to the disputed issues as the Accountant may request and are available to that party (including, in the case of ParentPurchaser, the Surviving Corporation Company or its accountants), and shall be afforded the opportunity to present to the Accountant any materials relating to the determination and to discuss the determination with the Accountant, provided that copies of all such materials are concurrently provided to the other party and that such discussions may only occur in the presence (including by telephone) of the other party, provided further that the Accountant shall consider only those items and amounts which are identified as being in dispute; and (z) the determination by the Accountant of the disputed items in the Closing Statement, as shall be set forth in a notice delivered to both parties by the Accountant, shall be binding and conclusive on the parties. In resolving any disputed item, the Accountant may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees of the Accountant for such determination shall be borne by ParentPurchaser, on the one hand, and the Securityholders, on the other hand, in proportion to the portion of the aggregate amount in dispute that is finally resolved by the Accountant in a manner adverse to such party. For example, if Parent the Purchaser claims the appropriate adjustments are $1,000 less than the amount determined by the Securityholders’ Representative, and the Securityholders’ Representative contests only $500 of the amount claimed by Parentthe Purchaser, and if the Accountant ultimately resolves the dispute by awarding Parent Purchaser $300 of the $500 contested, then the costs and expenses of the Accountant will be allocated 60% (i.e., 300/500) to the Securityholders and 40% (i.e., 200/500) to Parentthe Purchaser. (db) The Closing Date Merger Consideration shall be adjusted as follows (without duplication): (i)(A) increased by the amount, if any, by which the Working Capital, as finally determined pursuant to Sections 2.06(a)-(dSection 2.12(a) (“Final Working Capital”), is greater than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d) or (B) reduced by the amount, if any, by which the Final Working Capital is less than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d)Capital; (ii)(A) reduced by the amount, if any, by which the Closing Date Funded Indebtedness, as finally determined pursuant to Sections 2.06(a)-(dSection 2.12(a) (“Final Funded Indebtedness”) is greater than the Estimated Closing Date Funded Indebtedness or (B) increased by the amount, if any, by which the Final Funded Indebtedness is less than the Estimated Closing Date Funded Indebtedness; (iii)(A) reduced by the amount, if any, by which the Unpaid Company Transaction Seller Expenses, as finally determined pursuant to Sections 2.06(a)-(dSection 2.12(a) (“Final Unpaid Company Transaction Seller Expenses”) are greater than the Estimated Unpaid Company Transaction Seller Expenses or (B) increased by the amount, if any, by which the Final Unpaid Company Transaction Seller Expenses are less than the Estimated Unpaid Company Transaction Seller Expenses; and/or (iv)(A) increased by the amount, if any, by which the Closing Date Cash and Cash Equivalents, as finally determined pursuant to Sections 2.06(a)-(dSection 2.12(a) (“Final Cash and Cash Equivalents”) are greater than the Estimated Cash and Cash Equivalents or (B) reduced by the amount, if any, by which the Final Cash and Cash Equivalents are less than the Estimated Cash and Cash Equivalents; provided that, notwithstanding the foregoing, in no event shall the Adjustment Amount (whether positive or negative) exceed $2,500,000. (ec) No later than the second fifth (5th) Business Day following the final determination of the Adjustment Amount; (i) if the Adjustment Amount is positive, (A) Parent and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement; (B) with respect to each Stockholder who shall have delivered to the Company, on or prior to such date, a completed Letter of TransmittalTransmittal and certificate(s) representing the Outstanding Shares (subject to Section 2.11(h)) held by such Stockholder, Parent Purchaser shall pay, or shall cause the Surviving Corporation Company to pay, an amount equal to the product of the number of Outstanding Shares held by such Stockholder and the Adjustment Amount Per Share, which amount shall be payable by wire transfer of immediately available funds to the account designated in such Stockholder’s Letter of Transmittal; and; (CB) with respect to each holder of an a US In-the-Money Vested Option who has delivered to the Company, on or prior to such date, a completed US Option Surrender Form, Parent Purchaser shall cause the Surviving Corporation Company to pay pay, through the Surviving Company’s payroll system (with respect to US Optionholders who are employed by the Company Group at the time of such payment) or pursuant to the payment instructions set forth in such holder’s US Option Surrender Form (with respect to US Optionholders who are not employed by the Company Group at the time of such payment), to each such Optionholder holder, an amount equal to the excess of (x) the product of (1) the number of shares of Company Common Stock that were issuable if all upon the exercise of the such US In-the-Money Options held by such holder were exercised in full Vested Option and (2) the Adjustment Amount Per Share, Share less (y) any required withholding Taxes Taxes; and (C) Purchaser and without interest thereon; provided that any amounts previously paid by Parent pursuant Representative shall provide a joint written instruction to Section 2.06(b)(i) shall be credited against any amounts owed pursuant the Escrow Agent to this Section 2.06(e)(i)(B) and Section 2.06(e)(i)(C) and Parent shall not have any liability for any portion of release the Adjustment Escrow Amount payable under 2.06(b)(i), 2.06(e)(i)(B) to the Stockholders and 2.06(e)(i)(Cto the Surviving Company (for distribution to the US Optionholders) in excess of $10,000,000accordance with their respective Pro Rata Share and otherwise as provided in the Adjustment Escrow Agreement; or (ii) subject to Section 2.12(d), if the Adjustment Amount is negative, then Parent Purchaser and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the Adjustment Amount to be paid to the Surviving Corporation Company solely and exclusively from the Adjustment Escrow Account (up to a maximum amount equal to Amount, and, if the then remaining Adjustment Escrow Amount and the Securityholders shall not have any liability for any portion absolute value of the Adjustment Amount in excess of the then remaining amount in is less than the Adjustment Escrow Account)Amount, and any then the portion of the Adjustment Escrow Amount remaining following such payment to the Surviving Corporation Company shall be released to the Stockholders and to the Surviving Corporation Company (for distribution to the US Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement; or (iii) if the Adjustment Amount is zero, Parent Purchaser and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount to the Stockholders and to the Surviving Corporation Company (for distribution to the US Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Adjustment Escrow Agreement. (fd) For the avoidance of doubt, neither the Representative nor any Securityholder, nor any of their respective Affiliates, shall have any liability or obligation under this Section 2.12 for any amounts in excess of the Adjustment Escrow Amount. Recovery from the Adjustment Escrow Amount shall be the sole and exclusive remedy available to Purchaser for any claims by Purchaser against the Securityholders, or otherwise, arising out of or relating to any negative Adjustment Amount and neither Purchaser nor the Surviving Company or any of their respective Affiliates shall have any claim against Securityholder in respect thereof. The maximum amount payable to Purchaser pursuant to this Section 2.12 shall be the Adjustment Escrow Amount deposited in the Escrow Account, and the maximum Adjustment Amount payable to the Securityholders pursuant to this Section 2.12 shall be $2,500,000. (e) The Adjustment Amount shall be treated as an adjustment to the Closing Date Merger Consideration for federal, state, local and non-U.S. income tax purposes. (gf) From and after the Closing Date: (i) with respect to each Stockholder who shall not have delivered to the Company, on or prior to the Closing Date, a Letter of TransmittalTransmittal and certificate(s) representing the Outstanding Shares (subject to Section 2.11(g)) held by such Stockholder, Parent Purchaser shall, promptly (but in no event later than five (5) Business Days) following such Stockholder’s delivery to the Company of a completed Letter of TransmittalTransmittal and certificate(s) representing such Stockholder’s Outstanding Shares (subject to Section 2.11(g)), pay, or cause the Surviving Corporation Company to pay, all amounts that would previously have been payable with respect to such Outstanding Shares pursuant to this Article 2 had such Letter of Transmittal and certificate(s) been delivered on or prior to the Closing Date; and (ii) with respect to each holder of an a US In-the-Money Vested Option who shall not have delivered to the Company, on or prior to the Closing Date, an a US Option Surrender Form, Parent Purchaser shall, promptly (but in no event later than five (5) Business Days) following such holder’s delivery to the Surviving Corporation Company of a completed US Option Surrender Form, cause the Surviving Corporation Company to pay, through the Surviving Company’s payroll system (with respect to US Optionholders who are employed by the Company Group at the time of such payment) or pursuant to the payment instructions set forth in such holder’s US Option Surrender Form (with respect to US Optionholders who are not employed by the Company Group at the time of such payment), to such holder, all amounts that would previously have been payable with respect to such US In-the-Money Vested Option pursuant to this Article 2 had such US Option Surrender Form been delivered on or prior to the Closing Date, provided, however, that if any holder of an In-the-Money Option has not delivered an Option Surrender Form . (g) Notwithstanding anything to the contrary in this Agreement, any payments pursuant to this Section 2.12 to an Exercising UK Optionholder in respect of Outstanding Shares issued upon the exercise of UK Options in accordance with Section 2.9(b) or to a Stockholder in respect of shares of Restricted Stock shall be made through the Surviving Corporation prior to the time set forth in Section 2.05(i), then the cash otherwise payable to the holder of such In-the-Money Options shall become the property of Parent, free and clear of all claims and interest of any Person previously entitled theretoCompany’s payroll system.

Post-Closing Merger Consideration Adjustment and Payments. (a) As promptly as practicable, but in no event later than sixty (60) days following the Closing, Parent Purchaser shall in good faith prepare and deliver to the Securityholders’ Stockholder Representative a written statement (the “Closing Statement”), based upon the books and records of the Company and its SubsidiariesGroup, which shall set forth Parentwith Purchaser’s calculation of (i) Working Capital, which shall be based exclusively on the facts and circumstances as they exist as of the close of business on the day immediately preceding the Closing Date and shall exclude the effects of any event, act, change in circumstance or similar development arising or occurring thereafter (it being understood and agreed that Working Capital shall be used to measure changes in Working Capital and not as a form of indemnification and in furtherance of the foregoing, to the extent Parent asserts there is a current liability under this Section 2.06 that was not reflected in the calculation of the Target Working Capital, the Target Working Capital shall be recalculated in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B to reflect such current liability to the extent such current liability is included in the calculation of Final Working Capital), (ii) the adjustments to the Target Working Capital pursuant to clause (iif any) above and the resultant adjustments to Estimated Working Capital (which shall be recalculated to reflect such adjustments)Capital, (iii) Closing Date Funded Indebtedness, (iv) Unpaid Company Transaction Expenses, (v) Closing Date Cash and Cash Equivalents and Equivalents, (vi) Tax Benefit Amount and (vii) the Final Merger Consideration Adjustment Amount based upon such items. No actions taken by Parent on its own behalf items together with documentation reasonably supporting or on behalf of the Surviving Corporation or its Subsidiaries, at or following the Closing shall be given effect for purposes of determining the Closing Working Capitalexplaining such calculation. (b) If Parent’s calculation of the Adjustment Amount is positive, (i) Parent shall immediately pay to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), such positive Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06) and (ii) Parent The Pre-Closing Statement and the Securityholders’ Representative Closing Statement shall immediately deliver a joint instruction to be prepared and calculated based on the Escrow Agent instructing the Escrow Agent to release the entire Adjustment Escrow Amount to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)). If Parent’s calculation of the Adjustment Amount is negative but less than the Adjustment Escrow Amount, Parent Accounting Policies and the Securityholders’ Representative shall immediately deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release to the Securityholder’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), an amount equal to the excess of the Adjustment Escrow Amount over Parent’s calculation of the Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06).Exhibit A. (c) After receipt of the Closing Statement, the Securityholders’ Stockholder Representative and its Representatives shall have reasonable access to all relevant books and records (including accountant records, accounting work papers), and internal and external personnel and accountants and employees of the Surviving Corporation solely for the purpose of reviewing the Closing Statement in accordance with this Agreement and Company Group to the extent reasonably necessary requested by the Stockholder Representative to complete its review of the Closing Statement in a manner Statement; provided that such access shall be subject to customary confidentiality requirements and not to unreasonably interfere unreasonably with the conduct normal business operations of Parent’s or the Surviving Corporation’s businessCompany or its Subsidiaries. If, within 60 thirty (30) days following the delivery of the Closing Statement, the Securityholders’ Stockholder Representative has not given Parent Purchaser written notice of its objection to any item in the Closing Statement reasonably detailing the basis of such objection Statement, (an “Objection Notice”), which shall describe the nature of any such objection in reasonable detail and identify the specific items involved and, to the extent reasonably ascertainable, an estimate of the dollar amount of such objection, then the Closing Statement shall be deemed final and binding on ParentPurchaser, the Surviving Corporation Company, the Selling Equityholders and the Securityholders’ Representative (on behalf of all Securityholders)Stockholder Representative. If the Securityholders’ Stockholder Representative delivers an Objection Notice, then Parent Purchaser and the Securityholders’ Stockholder Representative shall consult in good faith to resolve the applicable disputed items items. Unless otherwise agreed to in writing by Purchaser and the Stockholder Representative, any such consultations shall be governed by Rule 408 of the Federal Rules of Evidence (as in effect as of the date of this Agreement) and any applicable similar state rule. The only disagreements that may be set forth in the Objection Notice andare those that relate to any claimed inconsistencies between the determinations of the amounts set forth in the Closing Statement pursuant to Section 2.10(a), if on the one hand, and the requirements for determinations thereof in accordance with this Agreement, on the other hand. If any disputed items in the Objection Notice have not been resolved within thirty (30) days following delivery of such notice, in each case, which may be extended from time to time by mutual agreement of the Stockholder Representative and Purchaser, from and after such applicable time either the Securityholders’ Stockholder Representative or Parent Purchaser may submit the remaining such disputed items to the New York, New York office of Xxxxx Xxxxxxxx LLP KPMG LP or, if such firm is unable to serve in such capacity, to such other nationally recognized independent accounting firm public accountant that is mutually agreeable to the Securityholders’ Stockholder Representative and Parent Purchaser (the “Accountant”) or, if no such agreement can be reached, the Securityholders’ Stockholder Representative and Parent Purchaser each shall, within 10 ten (10) days thereof, select a candidate for the Accountant and the two candidates so selected shall promptly select a third nationally recognized independent accounting firm which shall be appointed as the Accountant. The scope of the disputes to be resolved by the Accountant shall be limited to fixing mathematical errors and determining whether the items in dispute were determined in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B without regard to materiality and the Accountant is not to make any other determination and shall act as an arbitrator and not as an expert. If any items in dispute are submitted to the Accountant for resolution: (x) Parent and the Securityholders’ Representative shall use their respective reasonable efforts to cause the Accountant to resolve all remaining disagreements with respect to the Closing Statement as soon as practicable but in any event shall direct the Accountant to render a determination within 90 days after its retention; (y) Parent and the Securityholders’ Representative shall furnish to the Accountant and each other such work papers and other documents and information relating solely to the disputed issues as provided that the Accountant may request and are available not have served as an auditor or consultant to that party (includingPurchaser, the Stockholder Representative, or any of its Affiliates in the case of Parent, the Surviving Corporation or its accountants), and shall be afforded the opportunity to present to the Accountant any materials relating to the determination and to discuss the determination with the Accountant, provided that copies of all such materials are concurrently provided to the other party and that such discussions may only occur in the presence past five (including by telephone5) of the other party, provided further that the years. The Accountant shall consider only those items and amounts as to which are identified Purchaser and the Stockholder Representative have disagreed within the time periods and on the terms specified above. Both Purchaser and the Stockholder Representative may furnish to the Accountant such information and documents as it deems relevant, with copies of such submission and all such documents and information being in dispute; concurrently given to the other Party. The Accountant shall resolve each item of disagreement based solely on the supporting material provided by Purchaser and (z) the Stockholder Representative and not pursuant to any independent review. The determination of value made by the Accountant of with respect to the disputed items in the Closing Statement, as shall be set forth in a notice delivered submitted to both parties by the Accountant, shall be binding and conclusive on the parties. In resolving any disputed item, the Accountant may shall not assign a value to any item be greater than the greatest value for such item items claimed by either party Purchaser or the Stockholder Representative or less than the smallest value for such item items claimed by either partyPurchaser or the Stockholder Representative. The fees determination of the Accountant shall be conclusive and binding upon the Parties for such all purposes of this Agreement absent manifest error (and, in the event of manifest error, the determination shall be referred back to the Accountant to correct such error). The terms of appointment and engagement of the Accountant shall be as agreed upon between Purchaser and the Stockholder Representative, and any associated engagement fees shall be borne by Parent, based on the one hand, inverse of the percentage that the Accountant’s determination bears to the total amount of the total items in dispute as originally submitted to the Accountant; provided that any retainer or other upfront fees or expenses shall be shared equally between Purchaser and the Securityholders, on the other hand, in proportion Stockholder Representative subject to re-allocation pursuant to the portion of the aggregate amount in dispute that is finally resolved by the Accountant in a manner adverse to such partyprior clause. For example, if Parent claims should the appropriate adjustments are items in dispute total in amount to $1,000 less than and the amount determined by Accountant awards $600 in favor of the Securityholders’ Stockholder Representative, and the Securityholders’ Representative contests $500 60% of the amount claimed costs of its review would be borne by Parent, and if the Accountant ultimately resolves the dispute by awarding Parent $300 of the $500 contested, then the costs and expenses of the Accountant will be allocated 60% (i.e., 300/500) to the Securityholders Purchaser and 40% (i.e., 200/500) to Parentof the costs of its review would be borne by the Stockholder Representative. The Parties acknowledge that the accountant’s determination shall be enforceable as an arbitral award in any court of competent jurisdiction. (d) The Closing Date Class A Merger Consideration shall be adjusted as follows (without duplication): ): (i)(Ai) (A) increased by the amount, if any, by which the Working Capital, as finally determined pursuant to Sections 2.06(a)-(dSection 2.10(c) (the “Final Working Capital”), is greater than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d) or (B) reduced by the amount, if any, by which the Final Working Capital is less than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d); Capital; (ii)(A) reduced by the amount, if any, by which the Closing Date Funded Indebtedness, as finally determined pursuant to Sections 2.06(a)-(dii) (“Final Funded Indebtedness”) is greater than the Estimated Closing Date Funded Indebtedness or (B) increased by the amount, if any, by which the Final Funded Indebtedness is less than the Estimated Closing Date Funded Indebtedness; (iii)(A) reduced by the amount, if any, by which the Unpaid Company Transaction Expenses, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Unpaid Company Transaction Expenses”) are greater than the Estimated Unpaid Company Transaction Expenses or (B) increased by the amount, if any, by which the Final Unpaid Company Transaction Expenses are less than the Estimated Unpaid Company Transaction Expenses; and/or (iv)(AA) increased by the amount, if any, by which the Closing Date Cash and Cash Equivalents, as finally determined pursuant to Sections 2.06(a)-(dSection 2.10(c) (the “Final Cash and Cash Equivalents”) are ), is greater than the Estimated Cash and Cash Equivalents or (B) reduced by the amount, if any, by which the amount of Final Cash and Cash Equivalents are is less than the Estimated Cash and Cash Equivalents; (iii) (A) reduced by the amount, if any, by which the Closing Date Indebtedness, as finally determined pursuant to Section 2.10(c) (the “Final Indebtedness”), is greater than the Estimated Closing Date Indebtedness or (B) increased by the amount, if any, by which the Final Indebtedness is less than the Estimated Closing Date Indebtedness; (iv) (A) increased by the amount, if any, by which the Tax Benefit Amount, as finally determined pursuant to Section 2.10(c) (the “Final Tax Benefit Amount”), is greater than the Estimated Tax Benefit Amount or (B) reduced by the amount, if any, by which the amount of Final Tax Benefit Amount is less than the Estimated Tax Benefit Amount; and (v) (A) reduced by the amount, if any, by which the Transaction Expenses, as finally determined pursuant to Section 2.10(c) (the “Final Transaction Expenses”), is greater than the Estimated Transaction Expenses or (B) increased by the amount, if any, by which the Final Transaction Expenses are less than the Estimated Transaction Expenses. (e) When the Adjustment Amount is finally determined pursuant to Section 2.10(d), the Stockholder Representative will calculate in good faith the amount payable to each Stockholder and Optionholder in respect of the Adjustment Amount (if any and if positive) and/or the Adjustment Escrow Amount and shall communicate such calculations to Purchaser and the Paying Agent in writing. No later than the second fifth (5th) Business Day following the final determination of the Adjustment Amount;Amount and the communication by the Stockholder Representative to Purchaser and the Paying Agent of the foregoing calculations, (i) if the Adjustment Amount is positive,: (A) Parent Purchaser shall pay (or shall cause the Surviving Company to pay from its own resources) to the Paying Agent, for distribution to each Stockholder that delivered a Letter of Transmittal, based on the number of shares of Class A Common Stock and shares of Series A Preferred Stock held by such Stockholder immediately prior to the Effective Time, subject to Section 2.12, in cash and without interest thereon, an aggregate amount equal to the product of (x) the Adjustment Amount Per Class A Share multiplied by (y) the sum of the number of shares of Class A Common Stock issued and outstanding immediately prior to the Effective Time (other than any Excluded Shares) plus the aggregate number of Preferred Stock Deemed Conversion Shares in respect of all shares of Series A Preferred Stock issued and outstanding immediately prior to the Effective Time, by wire transfer of immediately available funds to an account specified in writing by the Paying Agent; (B) Purchaser shall pay to the Surviving Company (or shall cause the Surviving Company to pay from its own resources), for further payment through the next practicable payroll date of the Surviving Company to the Optionholders that delivered an executed Option Surrender Agreement, subject to Section 2.12, in cash and without interest thereon, an aggregate amount equal to the product of (x) the Adjustment Amount Per Class A Share multiplied by (y) the number of shares of Class A Common Stock issuable upon exercise in full of all Options outstanding and unexercised immediately prior to the Effective Time; and (C) Purchaser and the Securityholders’ Stockholder Representative shall provide a joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount and pay (1) to the Stockholders and to the Surviving Corporation (Paying Agent, for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement; (B) with respect to each Stockholder who shall have that delivered to the Company, on or prior to such date, a completed Letter of Transmittal, Parent shall paybased on the number of shares of Class A Common Stock and shares of Series A Preferred Stock held by such Stockholder immediately prior to the Effective Time, or shall cause the Surviving Corporation subject to paySection 2.12, in cash and without interest thereon, an aggregate amount equal to the product of (x) the quotient equal to the Adjustment Escrow Amount divided by the Fully-Diluted Class A Common Shares (the “Adjustment Escrow Amount Per Class A Share”) multiplied by (y) the sum of the number of Outstanding shares of Class A Common Stock issued and outstanding immediately prior to the Effective Time (other than any Excluded Shares) plus the aggregate number of Preferred Stock Deemed Conversion Shares held by such Stockholder in respect of all shares of Series A Preferred Stock issued and outstanding immediately prior to the Adjustment Amount Per ShareEffective Time, which amount shall be payable by wire transfer of immediately available funds to an account specified in writing by the account designated in such Stockholder’s Letter of Transmittal; and Paying Agent, and (C2) with respect to each holder of an In-the-Money Option who has delivered to the Surviving Company, on or prior for further payment through the next practicable payroll of the Surviving Company to such date, a completed the Optionholders that delivered an executed Option Surrender FormAgreement, Parent shall cause the Surviving Corporation subject to pay to each such Optionholder Section 2.12, in cash and without interest thereon, an aggregate amount equal to the product of (x) the Adjustment Escrow Amount Per Class A Share multiplied by (y) the number of shares of Company Class A Common Stock that were issuable if all of the In-the-Money Options held by such holder were exercised upon exercise in full of all Options outstanding and unexercised immediately prior to the Adjustment Amount Per Share, less any required withholding Taxes and without interest thereon; provided that any amounts previously paid by Parent pursuant to Section 2.06(b)(i) shall be credited against any amounts owed pursuant to this Section 2.06(e)(i)(B) and Section 2.06(e)(i)(C) and Parent shall not have any liability for any portion of the Adjustment Amount payable under 2.06(b)(i), 2.06(e)(i)(B) and 2.06(e)(i)(C) in excess of $10,000,000; orEffective Time; (ii) if the Adjustment Amount is negative, then Parent : (A) Purchaser and the Securityholders’ Stockholder Representative shall provide a joint written instruction to the Escrow Agent to release and pay an amount equal to (the absolute value of) the Adjustment Amount to be paid to the Surviving Corporation Purchaser solely and exclusively from the Adjustment Escrow Account (up to a maximum amount equal to the then remaining Adjustment Escrow Amount and the Securityholders which payment shall not have any liability for any portion of exceed the Adjustment Amount in excess of the then then-remaining amount in the Adjustment Escrow Account), and any portion of the Adjustment Escrow Amount remaining following such payment to the Surviving Corporation shall be released to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement; or; (iiiB) if the Adjustment Amount is zero, Parent Purchaser and the Securityholders’ Stockholder Representative shall provide a joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount and pay (1) to the Stockholders and to the Surviving Corporation (Paying Agent, for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement. (f) The Adjustment Amount shall be treated as an adjustment to the Closing Date Merger Consideration for income tax purposes. (g) From and after the Closing Date: (i) with respect to each Stockholder who shall not have that delivered to the Company, on or prior to the Closing Date, a Letter of Transmittal, Parent shall, promptly (but in no event later than five Business Days) following based on the number of shares of Class A Common Stock and shares of Series A Preferred Stock held by such Stockholder’s delivery to the Company of a completed Letter of Transmittal, pay, or cause the Surviving Corporation to pay, all amounts that would previously have been payable with respect to such Outstanding Shares pursuant to this Article 2 had such Letter of Transmittal been delivered on or Stockholder immediately prior to the Closing Date; and (ii) with respect Effective Time, subject to each holder of Section 2.12, in cash and without interest thereon, an In-the-Money Option who shall not have delivered aggregate amount equal to the Company, on or product of (x) the quotient equal to the then-remaining amount (if any) in the Adjustment Escrow Account after the payment to Purchaser under clause (A) above divided by the Fully-Diluted Class A Common Shares (the “Remaining Adjustment Escrow Amount Per Class A Share”) multiplied by (y) the sum of the number of shares of Class A Common Stock issued and outstanding immediately prior to the Closing DateEffective Time (other than any Excluded Shares) plus the aggregate number of Preferred Stock Deemed Conversion Shares in respect of all shares of Series A Preferred Stock issued and outstanding immediately prior to the Effective Time, by wire transfer of immediately available funds to an Option Surrender Formaccount specified in writing by the Paying Agent, Parent shall, promptly and (but in no event later than five Business Days2) following such holder’s delivery to the Surviving Corporation Company, for further payment through the next practicable payroll of a completed the Surviving Company to the Optionholders that delivered an executed Option Surrender FormAgreement, cause subject to Section 2.12, in cash and without interest thereon, an aggregate amount equal to the Surviving Corporation to pay, to such holder, product of (x) the Remaining Adjustment Escrow Amount Per Class A Share multiplied by (y) the number of shares of Class A Common Stock issuable upon exercise in full of all amounts that would previously have been payable with respect to such In-the-Money Option pursuant to this Article 2 had such Option Surrender Form been delivered on or Options outstanding and unexercised immediately prior to the Closing Date, provided, however, that if any holder of an In-the-Money Option has not delivered an Option Surrender Form to the Surviving Corporation prior to the time set forth in Section 2.05(i), then the cash otherwise payable to the holder of such In-the-Money Options shall become the property of Parent, free and clear of all claims and interest of any Person previously entitled thereto.Effective Time; and

Post-Closing Merger Consideration Adjustment and Payments. (a) As promptly as practicable, but in no event later than sixty (60) days following the Closing, Parent shall in good faith prepare and deliver to the Securityholders’ Seller Representative a written statement (the “Closing Statement”), based upon the books and records of the Company and its the Company Subsidiaries, which shall set forth Parent’s good faith calculation of (i) Closing Date Cash and Cash Equivalents, (ii) Working Capital, which shall be based exclusively on the facts and circumstances as they exist as of the close of business on the day immediately preceding the Closing Date and shall exclude the effects of any event, act, change in circumstance or similar development arising or occurring thereafter (it being understood and agreed that Working Capital shall be used to measure changes in Working Capital and not as a form of indemnification and in furtherance of the foregoing, to the extent Parent asserts there is a current liability under this Section 2.06 that was not reflected in the calculation of the Target Working Capital, the Target Working Capital shall be recalculated in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B to reflect such current liability to the extent such current liability is included in the calculation of Final Working Capital), (ii) the adjustments to the Target Working Capital pursuant to clause (i) above and the resultant adjustments to Estimated Working Capital (which shall be recalculated to reflect such adjustments)thereafter, (iii) Closing Date Funded Indebtedness, (iv) Unpaid Company Transaction Expenses, Selling Expenses and (v) Closing Date Cash and Cash Equivalents and (vi) the Final Merger Consideration (assuming release to the holders of Units of the entire Escrow Amount) based upon such the foregoing items. No actions taken by Parent on its own behalf or on behalf The parties acknowledge that the sole purpose of the Surviving Corporation or its Subsidiaries, at or following determination of Working Capital in the Closing shall Statement is to adjust the Purchase Price to reflect changes in the Working Capital, and such change can only be given effect for purposes of measured if the calculation is done using the same methodology, practices and principles used in determining the Closing Target Working Capital. From and after the Closing Date, the Company and the Company Subsidiaries shall provide Parent with all information and assistance necessary for Parent to provide the Closing Statement and take other actions necessary or advisable under this Section 3.06. (b) If Parent’s calculation of the Adjustment Amount is positive, (i) Parent shall immediately pay to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), such positive Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06) and (ii) Parent and the Securityholders’ Representative shall immediately deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release the entire Adjustment Escrow Amount to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)). If Parent’s calculation of the Adjustment Amount is negative but less than the Adjustment Escrow Amount, Parent and the Securityholders’ Representative shall immediately deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release to the Securityholder’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), an amount equal to the excess of the Adjustment Escrow Amount over Parent’s calculation of the Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06). (c) After receipt of the Closing Statement, the Securityholders’ Seller Representative and its Representatives shall have reasonable full access to, and be allowed to make copies of, all relevant books and records (including accountant work papers), ) and full access to accountants and employees of the Surviving Corporation solely for Company and the purpose of reviewing the Closing Statement in accordance with this Agreement and Company Subsidiaries to the extent reasonably necessary to complete its their review of the Closing Statement in a manner not Statement, and Parent shall cause the Surviving Company and the Company Subsidiaries to interfere unreasonably cooperate with the conduct Seller Representative and its Representatives in connection with their review. Following the Closing, Parent, the Surviving Company and the Company Subsidiaries shall not take any action with respect to the accounting books and records on which the Closing Statement is to be based that would obstruct or prevent the preparation of the Closing Statement and the determinations set forth in this Section 3.06. If Parent, the Surviving Company or any Company Subsidiary fails to provide such access or cooperation or is otherwise in breach of this Section 3.06(b), the Seller Representative may initiate the appointment of the Arbiter in accordance with Section 3.06(b)(iii). The Arbiter shall have the authority (x) to determine whether Parent, the Surviving Company or any Company Subsidiary has complied with its obligations in accordance with this Section 3.06(b) and to order Parent, the Surviving Company and the Company Subsidiaries to so comply, (y) to extend any deadlines set forth herein as the Arbiter deems appropriate if Parent, the Surviving Company or any Company Subsidiary has failed to comply with its obligations under this Section 3.06(b) and (z) allow the Seller Representative to amend its Objection Notice if the Arbiter determines that Parent’s, the Surviving Company’s or any Company Subsidiary’s failure to comply has affected the Surviving Corporation’s business. ability of the Seller Representative and its Representatives to timely review the Closing Statement and related information. (i) If, within 60 forty-five (45) days following the delivery of the Closing Statement, the Securityholders’ Seller Representative has not given Parent notice of its objection to any item in the Closing Statement reasonably detailing Statement, which notice shall set forth in reasonable detail the basis of such objection the Seller Representative’s disagreement, the amounts involved and the proposed determination of the dispute amount (an a “Objection Notice”), then the Closing Statement shall be deemed final and binding on Parent, the Surviving Corporation Company, the Seller Representative and the Securityholders’ Representative holders of Units. (on behalf of all Securityholders). ii) If the Securityholders’ Seller Representative delivers an Objection Notice, then Parent and the Securityholders’ Seller Representative shall consult in good faith to resolve the disputed items set forth in the Objection Notice. If all disputed items set forth in the Objection Notice andare resolved in writing by the Seller Representative and Parent, if then the Closing Statement, as revised to reflect the written resolution of the Seller Representative and Parent, shall be final and binding on Parent, the Surviving Company, the Seller Representative and the holders of Units. (iii) If any disputed items have not been resolved within thirty (30) days following delivery of such noticethe Objection Notice, from and after such time either the Securityholders’ Seller Representative or Parent may submit separate detailed written statements setting forth their respective positions with respect to the remaining disputed items to the New York, New York office of Xxxxx Xxxxxxxx LLP a nationally recognized independent public accountant (or, if such firm none is unable to serve in such capacityavailable, to such other a nationally recognized independent accounting firm consulting or valuation firm) that is mutually agreeable to the Securityholders’ Seller Representative and Parent (the “AccountantArbiter”) or, if no such agreement can be reached, the Securityholders’ Representative and Parent each shall, within 10 days thereof, select a candidate for the Accountant and the two candidates so selected shall promptly select a third nationally recognized independent accounting firm which shall be appointed as the Accountant. The scope of the disputes to be resolved by the Accountant shall be limited to fixing mathematical errors and determining whether the items in dispute were determined in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B without regard to materiality and the Accountant is not to make any other determination and shall act as an arbitrator and not as an expert. resolution. (A) If any items in dispute are submitted to the Accountant Arbiter for resolution: , (x) Parent and the Securityholders’ Seller Representative shall use their respective reasonable efforts to cause the Accountant Arbiter to resolve all remaining disagreements (only to the extent such disagreements remain in dispute) with respect to the Closing Statement as soon as practicable but in any event shall direct the Accountant Arbiter to render a determination within 90 thirty (30) days after its retention; , (y) Parent and the Securityholders’ Seller Representative shall cooperate with the Arbiter during its engagement and furnish to the Accountant Arbiter and to each other such work papers and other documents and information (subject to customary non-reliance letters, confidentiality agreements or similar agreements that may be requested by third parties) relating solely to the disputed issues as the Accountant Arbiter may request and are available to that party (including, in the case of Parent, the Surviving Corporation Company, the Company Subsidiaries or its their accountants), and shall be afforded the opportunity to present to the Accountant Arbiter any materials relating to the determination and to discuss the determination with the AccountantArbiter; provided, provided however, that copies of all such materials are concurrently provided to the other party and that such discussions may only occur in the presence (including by telephone) of the other party, ; provided further that the Accountant Arbiter (I) shall consider only those items and amounts which are identified as being in dispute; dispute and (II) shall be bound by the Accounting Principles and other terms of this Agreement, including the definition of Working Capital, and (z) the determination by the Accountant Arbiter of the disputed items in the Closing Statement, as shall be set forth in a notice delivered to both parties by the AccountantArbiter, shall be final and binding on Parent, the holders of Units, the Seller Representative and conclusive any other party hereto on the partiesdate the Arbiter delivers its final resolution in writing to the Seller Representative and Parent. (B) The Arbiter shall have full authority to resolve all issues relating to the disputed items in the Objection Notice (including procedural, legal, factual and accounting issues); provided, however, that the Arbiter shall not have the authority to resolve issues relating to (x) breaches of representations, warranties or covenants or (y) other claims that are not directly related to, and within the scope of, the disputed items in the Objection Notice. The Arbiter shall set forth its determination of all issues in a written opinion. In resolving any disputed item, the Accountant Arbiter will be authorized to select only the position on such item as presented by either the Seller Representative (on the one hand) or Parent (on the other hand). The Arbiter will have no power to reach any other result and shall select the position that, in its judgment, is the closest to being in conformity with this Agreement. The Arbiter shall make its determination based solely on presentations by Parent and the Seller Representative and not on the basis of independent review. The final judgment of the Arbiter may be entered into any court having jurisdiction over the issues addressed in the arbitration. (C) The parties and the Arbiter will keep confidential, and will not assign a value disclose to any item greater than Person, except to their Representatives or as may be required by Law or in connection with enforcing the greatest value for decision of the Arbiter, the existence of any dispute, claim or controversy under this Section 3.06, the referral of any such item claimed by either party dispute, claim or less than controversy to arbitration or the smallest value for such item claimed by either party. status or resolution thereof. (D) The fees of the Accountant Arbiter for such determination shall be borne equally by Parent, on the one hand, and the SecurityholdersSeller Representative, on the other hand, in proportion to the portion of the aggregate amount in dispute that is finally resolved by the Accountant in a manner adverse to such party. For example, if Parent claims the appropriate adjustments are $1,000 less than the amount determined by the Securityholders’ Representative, and the Securityholders’ Representative contests $500 of the amount claimed by Parent, and if the Accountant ultimately resolves the dispute by awarding Parent $300 of the $500 contested, then the costs and expenses of the Accountant will be allocated 60% (i.e., 300/500) to the Securityholders and 40% (i.e., 200/500) to Parentother. (dc) The Closing Date Merger Consideration shall be adjusted as follows (without duplication): (i)(A) increased by the amount, if any, by which the Working Capital, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Working Capital”), is greater than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d) or (B) reduced by the amount, if any, by which the Final Working Capital is less than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d); (ii)(A) reduced by the amount, if any, by which the Closing Date Funded Indebtedness, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Funded Indebtedness”) is greater than the Estimated Closing Date Funded Indebtedness or (B) increased by the amount, if any, by which the Final Funded Indebtedness is less than the Estimated Closing Date Funded Indebtedness; (iii)(A) reduced by the amount, if any, by which the Unpaid Company Transaction Expenses, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Unpaid Company Transaction Expenses”) are greater than the Estimated Unpaid Company Transaction Expenses or (B) increased by the amount, if any, by which the Final Unpaid Company Transaction Expenses are less than the Estimated Unpaid Company Transaction Expenses; and/or (iv)(A) increased by the amount, if any, by which the Closing Date Cash and Cash Equivalents, as finally determined pursuant to Sections 2.06(a)-(dSection 3.06(b) (“Final Cash and Cash Equivalents”) are greater than the Estimated Cash and Cash Equivalents or (B) reduced by the amount, if any, by which the Final Cash and Cash Equivalents are less than the Estimated Cash and Cash Equivalents; (ii)(A) increased by the amount, if any, by which Working Capital, as finally determined pursuant to Section 3.06(b) (“Final Working Capital”), is greater than Estimated Working Capital or (B) reduced by the amount, if any, by which Final Working Capital is less than Estimated Working Capital; (iii)(A) reduced by the amount, if any, by which Unpaid Selling Expenses, as finally determined pursuant to Section 3.06(b) (“Final Unpaid Selling Expenses”), is greater than the Estimated Unpaid Selling Expenses or (B) increased by the amount, if any, by which Final Unpaid Selling Expenses is less than Estimated Unpaid Selling Expenses, and (iv)(A) reduced by the amount, if any, by which Closing Date Indebtedness, as finally determined pursuant to Section 3.06(b) (“Final Closing Date Indebtedness”) is greater than Estimated Closing Date Indebtedness or (B) increased by the amount, if any, by which Final Closing Date Indebtedness is less than Estimated Closing Date Indebtedness. (ed) No later than the second third (3rd) Business Day following the final determination of the Adjustment Amount;: (i) if the Adjustment Amount is positive, , then (A) Parent shall pay, or shall cause the Surviving Company to pay, the Adjustment Amount to the Seller Representative and (B) Parent and the Securityholders’ Seller Representative shall provide deliver joint written instruction to the Escrow Agent to release the Escrow Amount to the Seller Representative, in each case, for payment to the Tendering Members pursuant to Section 3.06(e); (ii) if the Adjustment Amount is negative (A) but less than the funds on deposit in the Escrow Account, then (1) Parent and the Seller Representative shall deliver a joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in Parent an amount of cash from the Escrow Agreement; (B) with respect to each Stockholder who shall have delivered to the Company, on or prior to such date, a completed Letter of Transmittal, Parent shall pay, or shall cause the Surviving Corporation to pay, an amount Account equal to the product lesser of (x) the number of Outstanding Shares held by such Stockholder Escrow Amount and (y) the Adjustment Amount Per Share, which amount shall be payable by wire transfer of immediately available funds to the account designated in such Stockholder’s Letter of Transmittal; and (C) with respect to each holder of an In-the-Money Option who has delivered to the Company, on or prior to such date, a completed Option Surrender Form, Parent shall cause the Surviving Corporation to pay to each such Optionholder an amount equal to the product of the number shares of Company Common Stock that were issuable if all of the In-the-Money Options held by such holder were exercised in full and the Adjustment Amount Per Share, less any required withholding Taxes and without interest thereon; provided that any amounts previously paid by Parent pursuant to Section 2.06(b)(i) shall be credited against any amounts owed pursuant to this Section 2.06(e)(i)(B) and Section 2.06(e)(i)(C) and Parent shall not have any liability for any portion absolute value of the Adjustment Amount payable under 2.06(b)(i), 2.06(e)(i)(Band (2) and 2.06(e)(i)(C) in excess of $10,000,000; or (ii) if the Adjustment Amount is negative, then Parent and the Securityholders’ Seller Representative shall provide deliver a joint written instruction to the Escrow Agent to release the Adjustment Amount to be paid to the Surviving Corporation solely and exclusively Seller Representative for payment to the Tendering Members pursuant to Section 3.06(e) any remaining cash from the Adjustment Escrow Account following the release pursuant to Section 3.06(d)(ii)(A)(1) or (up B) but greater than the funds on deposit in the Escrow Account, then (1) Parent and the Seller Representative shall deliver a joint written instruction to a maximum the Escrow Agent to release to Parent all of the amounts on deposit in the Escrow Account and (2) the Seller Representative shall pay to Parent an amount equal to the then remaining Adjustment Escrow Amount and the Securityholders shall not have any liability for any portion absolute value of the Adjustment Amount in excess of less the then remaining amount in the Adjustment Escrow Account), and any portion of the Adjustment Escrow Amount remaining following such payment to the Surviving Corporation shall be released to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow AgreementParent pursuant Section 3.06(d)(ii)(B)(1); or (iii) if the Adjustment Amount is zero, zero Parent and the Securityholders’ Seller Representative shall provide a deliver joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount to the Stockholders and Seller Representative for payment to the Surviving Corporation Tendering Members pursuant to Section 3.06(e). (for distribution e) With respect to any amount paid or released to the OptionholdersSeller Representative pursuant to Section 3.06(d), the Seller Representative shall (i) cause the portion of such amount payable with respect to the Accelerated Award Units to be delivered to CMQR US specifying the amount to be paid to the holder of any such Unit and (ii) with respect to the remaining portion of such amount, pay to each Tendering Member, excluding any Accelerated Award Unit Holder with respect to his or her Accelerated Award Units, an amount equal to the amount that would have been distributed to such Tendering Member if such portion of such amount were distributed to the former holders of Units, excluding any Accelerated Award Unit Holder with respect to his or her Accelerated Award Units, in accordance with their respective Pro Rata Share Section 5.02 of the Company Agreement. Promptly following the date the portion of such amount is delivered to CMQR US in accordance with this Section 3.06(e) (but in no event later than the second regularly scheduled payroll date following such date), Parent shall, with respect to each Tendering Member who is Accelerated Award Unit Holder, cause CMQR US to pay to each such Tendering Member, through CMQR US’s payroll system, an amount equal to the amount that would have been distributed to such Tendering Member with respect to such Tendering Member’s Accelerated Award Units if such portion of such amount were distributed to the Accelerated Award Unit Holders in accordance with Section 5.02 of the Company Agreement, less any required withholding taxes, and otherwise as provided in the Escrow Agreementwithout interest thereon. (f) The Adjustment Amount shall be treated as an adjustment to the Closing Date Merger Consideration for federal, state, local and foreign income tax Tax purposes. (g) From and after the Closing Date: (i) with respect to each Stockholder who shall not have delivered to the Company, on or prior to the Closing Date, a Letter of Transmittal, Parent shall, promptly (but in no event later than five Business Days) following such Stockholder’s delivery to the Company of a completed Letter of Transmittal, pay, or cause the Surviving Corporation to pay, all amounts that would previously have been payable with respect to such Outstanding Shares pursuant to this Article 2 had such Letter of Transmittal been delivered on or prior to the Closing Date; and (ii) with respect to each holder of an In-the-Money Option who shall not have delivered to the Company, on or prior to the Closing Date, an Option Surrender Form, Parent shall, promptly (but in no event later than five Business Days) following such holder’s delivery to the Surviving Corporation of a completed Option Surrender Form, cause the Surviving Corporation to pay, to such holder, all amounts that would previously have been payable with respect to such In-the-Money Option pursuant to this Article 2 had such Option Surrender Form been delivered on or prior to the Closing Date, provided, however, that if any holder of an In-the-Money Option has not delivered an Option Surrender Form to the Surviving Corporation prior to the time set forth in Section 2.05(i), then the cash otherwise payable to the holder of such In-the-Money Options shall become the property of Parent, free and clear of all claims and interest of any Person previously entitled thereto.

Post-Closing Merger Consideration Adjustment and Payments. (a) As promptly as practicable, but in no event later than sixty (60) days following the Closing, Parent shall in good faith prepare and deliver to the SecurityholdersStockholders’ Representative a written statement (the “Closing Date Working Capital Statement”), based upon the books and records of the Company Company, setting forth the actual Working Capital as of the Calculation Time. The Closing Statement will be prepared in the same format as the Pre-Closing Statement and its Subsidiaries, shall fairly and accurately present the Working Capital determined in accordance with the Accounting Methodologies. (b) Stockholders’ Representative shall have a period of thirty (30) days after the date on which shall set forth the Closing Statement is delivered to it (the “Review Period”) to review the Closing Statement. If Stockholders’ Representative objects to Parent’s calculation of (i) the Working Capital, which shall be based exclusively on the facts and circumstances as they exist as of the close of business on the day immediately preceding the Closing Date and shall exclude the effects of any event, act, change in circumstance or similar development arising or occurring thereafter (it being understood and agreed that Working Capital shall be used to measure changes in Working Capital and not as a form of indemnification and in furtherance of the foregoing, to the extent Parent asserts there is a current liability under this Section 2.06 that was not reflected in the calculation of the Target Working Capital, the Target Working Capital shall be recalculated in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B to reflect such current liability to Closing Statement, Stockholders’ Representative shall so inform Parent in writing (the extent such current liability is included “Objection”) on or before the last day of the Review Period, setting forth in reasonable detail the calculation basis of Final Working Capital), (ii) the Objection and the adjustments to the Target Working Capital Closing Statement that Stockholders’ Representative believes should be made. In the event that an Objection is not delivered to the Parent on or before the last day of the Review Period, Stockholders’ Representative shall be deemed to have agreed to the Closing Statement. In the event that an Objection is delivered to Parent on or before the last day of the Review Period, Parent and the Stockholders’ Representative shall attempt in good faith to reach an agreement with respect to any matters in dispute. If Parent and the Stockholders’ Representative are unable to resolve all of their differences within thirty (30) days after delivery of the Objection to Parent (or such longer period as they may mutually agree), they will refer their remaining differences a nationally recognized firm of independent public accountants as to which Parent and the Stockholders’ Representative shall mutually agree (or, if the Stockholders’ Representative and Parent are unable to agree on the choice of such accounting firm, then such firm will be selected by lot, after the Stockholders’ Representative and Parent each submits two proposed firms and then excludes one firm designated by the other party) (the firm actually retained pursuant to clause (i) above this sentence, the “Independent Accountant”). The Independent Accountant will, based on those items as to which Parent and the resultant adjustments to Estimated Working Capital (which shall be recalculated to reflect such adjustments)Stockholders’ Representative have agreed and the Independent Accountant’s determination regarding those items in dispute, (iii) Closing Date Funded Indebtedness, (iv) Unpaid Company Transaction Expenses, (v) Closing Date Cash and Cash Equivalents and (vi) finally determine the Final Merger Consideration based upon such items. No actions taken by Parent on its own behalf or on behalf of the Surviving Corporation or its Subsidiaries, at or following the Closing shall be given effect for purposes of determining the Closing Working Capital. (b) If Parent’s calculation of the Adjustment Amount is positive, (i) Parent shall immediately pay to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), such positive Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06) and (ii) Parent and the Securityholders’ Representative shall immediately deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release the entire Adjustment Escrow Amount to the Securityholders’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)). If Parent’s calculation of the Adjustment Amount is negative but less than the Adjustment Escrow Amount, Parent and the Securityholders’ Representative shall immediately deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release to the Securityholder’ Representative, for further distribution to the Securityholders (to be paid to the Securityholders as if such amount were being distributed pursuant to Section 2.06(e)(i)), an amount equal to the excess of the Adjustment Escrow Amount over Parent’s calculation of the Adjustment Amount (it being understood and agreed that such payment shall not limit the rights of the Securityholders’ Representative pursuant to this Section 2.06). (c) After receipt of the Closing Statement, the Securityholders’ Representative and its Representatives shall have reasonable access to all relevant books and records (including accountant work papers), accountants and employees of the Surviving Corporation solely for the purpose of reviewing the Closing Statement in accordance with this Agreement and to the extent reasonably necessary to complete its review of the Closing Statement in a manner not to interfere unreasonably with the conduct of Parent’s or the Surviving Corporation’s business. If, within 60 days following the delivery of the Closing Statement, the Securityholders’ Representative has not given Parent notice of its objection to any item in the Closing Statement reasonably detailing the basis of such objection (an “Objection Notice”), then the Closing Statement shall be deemed final and binding on Parent, the Surviving Corporation and the Securityholders’ Representative (on behalf of all Securityholders). If the Securityholders’ Representative delivers an Objection Notice, then Parent and the Securityholders’ Representative shall consult in good faith to resolve the disputed items set forth in the Objection Notice and, if any disputed items have not been resolved within thirty days following delivery of such notice, from and after such time either the Securityholders’ Representative or Parent may submit the remaining disputed items to the New York, New York office of Xxxxx Xxxxxxxx LLP or, if such firm is unable to serve in such capacity, to such other nationally recognized independent accounting firm that is mutually agreeable to the Securityholders’ Representative and Parent (the “Accountant”) or, if no such agreement can be reached, the Securityholders’ Representative and Parent each shall, within 10 days thereof, select a candidate for the Accountant and the two candidates so selected shall promptly select a third nationally recognized independent accounting firm which shall be appointed as the Accountant. The scope of the disputes to be resolved by the Accountant shall be limited to fixing mathematical errors and determining whether the items in dispute were determined in accordance with the definitions of Working Capital and Target Working Capital and the methodology set forth on Exhibit B without regard to materiality and the Accountant is not to make any other determination and shall act as an arbitrator and not as an expert. If any items in dispute are submitted to the Independent Accountant for resolution: , (x) Parent and the SecurityholdersStockholders’ Representative shall use their respective reasonable efforts to cause the Independent Accountant to resolve all remaining disagreements (only to the extent such disagreements remain in dispute) with respect to the Closing Statement as soon as practicable but in any event shall direct the Independent Accountant to render a determination within 90 thirty (30) days after its retention; , and (y) Parent and the SecurityholdersStockholders’ Representative shall cooperate with the Independent Accountant during its engagement and furnish to the Independent Accountant and each other such work papers and other documents and information (subject to customary non-reliance letters, confidentiality agreements or similar agreements that may be requested by third parties) relating solely to the disputed issues as the Independent Accountant may request and are available to that party (including, in the case of Parent, the Surviving Corporation Company or its accountants), and shall be afforded the opportunity to present to the Independent Accountant any materials relating to the determination and to discuss the determination with the Independent Accountant; provided, provided however, that copies of all such materials are concurrently provided to the other party and that such discussions may only occur in the presence (including by telephone) of the other party; provided further, provided further however, that the Independent Accountant shall consider only those items and amounts which are identified as being in dispute; dispute and were raised in the Closing Statement or the Objection, and (z) the determination by the Independent Accountant of the disputed items in the Closing Statement, as shall be set forth in a notice delivered to both parties by the Independent Accountant, shall be final and binding on Parent, the Surviving Company, the Equityholders and conclusive any other party hereto on the partiesdate the Independent Accountant delivers its final resolution in writing to the Stockholders’ Representative and Parent. The Independent Accountant shall act as an accounting expert only and not as an arbitrator. Disputes regarding the interpretation of this Agreement shall be resolved pursuant to Section 9.3. (ii) In resolving any disputed item, the Independent Accountant may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees Independent Accountant shall make its determination based solely on presentations by Parent and the Stockholders’ Representative and not on the basis of the Accountant for such independent review. The Independent Accountant’s determination shall be borne set forth in writing and shall be conclusive and binding upon all parties hereto and may be entered as a final judgment in any court of competent jurisdiction. (iii) The fees and expenses of the Independent Accountant shall be paid by ParentStockholders’ Representative, on the one hand, and the SecurityholdersParent, on the other hand, in proportion based upon the percentage that the amount actually contested but not awarded to the portion of Stockholders’ Representative or Parent, respectively, bears to the aggregate amount in dispute that is finally resolved actually contested by the Accountant in a manner adverse to such partyStockholders’ Representative or Parent. For By way of example, if (x) Parent claims states that the appropriate adjustments are disputed amount owed to Parent is $1,000 less than 1,000,000, (y) Stockholders’ Representative states that the disputed amount determined by the Securityholders’ Representativeowed to Parent is $500,000, and (z) the SecurityholdersIndependent Accountant determines that the disputed amount owed to Parent is $900,000, then (1) Stockholders’ Representative contests $500 shall pay 80% of the amount claimed by Parent, and if the Accountant ultimately resolves the dispute by awarding Parent $300 of the $500 contested, then the costs fees and expenses of the Accountant will be allocated 60Independent Accountant, and (2) Parent shall pay the remaining 20% (i.e., 300/500) to the Securityholders and 40% (i.e., 200/500) to Parent. (d) The Closing Date Merger Consideration shall be adjusted as follows (without duplication): (i)(A) increased by the amount, if any, by which the Working Capital, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Working Capital”), is greater than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d) or (B) reduced by the amount, if any, by which the Final Working Capital is less than the Estimated Working Capital as finally determined pursuant to Sections 2.06(a)-(d); (ii)(A) reduced by the amount, if any, by which the Closing Date Funded Indebtedness, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Funded Indebtedness”) is greater than the Estimated Closing Date Funded Indebtedness or (B) increased by the amount, if any, by which the Final Funded Indebtedness is less than the Estimated Closing Date Funded Indebtedness; (iii)(A) reduced by the amount, if any, by which the Unpaid Company Transaction Expenses, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Unpaid Company Transaction Expenses”) are greater than the Estimated Unpaid Company Transaction Expenses or (B) increased by the amount, if any, by which the Final Unpaid Company Transaction Expenses are less than the Estimated Unpaid Company Transaction Expenses; and/or (iv)(A) increased by the amount, if any, by which the Closing Date Cash and Cash Equivalents, as finally determined pursuant to Sections 2.06(a)-(d) (“Final Cash and Cash Equivalents”) are greater than the Estimated Cash and Cash Equivalents or (B) reduced by the amount, if any, by which the Final Cash and Cash Equivalents are less than the Estimated Cash and Cash Equivalents. (e) No later than the second Business Day following the final determination of the Adjustment Amount; (i) if the Adjustment Amount is positive, (A) Parent fees and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement; (B) with respect to each Stockholder who shall have delivered to the Company, on or prior to such date, a completed Letter of Transmittal, Parent shall pay, or shall cause the Surviving Corporation to pay, an amount equal to the product expenses of the number of Outstanding Shares held by such Stockholder and the Adjustment Amount Per Share, which amount shall be payable by wire transfer of immediately available funds to the account designated in such Stockholder’s Letter of Transmittal; and (C) with respect to each holder of an In-the-Money Option who has delivered to the Company, on or prior to such date, a completed Option Surrender Form, Parent shall cause the Surviving Corporation to pay to each such Optionholder an amount equal to the product of the number shares of Company Common Stock that were issuable if all of the In-the-Money Options held by such holder were exercised in full and the Adjustment Amount Per Share, less any required withholding Taxes and without interest thereon; provided that any amounts previously paid by Parent pursuant to Section 2.06(b)(i) shall be credited against any amounts owed pursuant to this Section 2.06(e)(i)(B) and Section 2.06(e)(i)(C) and Parent shall not have any liability for any portion of the Adjustment Amount payable under 2.06(b)(i), 2.06(e)(i)(B) and 2.06(e)(i)(C) in excess of $10,000,000; or (ii) if the Adjustment Amount is negative, then Parent and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the Adjustment Amount to be paid to the Surviving Corporation solely and exclusively from the Adjustment Escrow Account (up to a maximum amount equal to the then remaining Adjustment Escrow Amount and the Securityholders shall not have any liability for any portion of the Adjustment Amount in excess of the then remaining amount in the Adjustment Escrow Account), and any portion of the Adjustment Escrow Amount remaining following such payment to the Surviving Corporation shall be released to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow Agreement; or (iii) if the Adjustment Amount is zero, Parent and the Securityholders’ Representative shall provide a joint written instruction to the Escrow Agent to release the entire remaining Adjustment Escrow Amount to the Stockholders and to the Surviving Corporation (for distribution to the Optionholders) in accordance with their respective Pro Rata Share and otherwise as provided in the Escrow AgreementIndependent Accountant. (f) The Adjustment Amount shall be treated as an adjustment to the Closing Date Merger Consideration for income tax purposes. (g) From and after the Closing Date: (i) with respect to each Stockholder who shall not have delivered to the Company, on or prior to the Closing Date, a Letter of Transmittal, Parent shall, promptly (but in no event later than five Business Days) following such Stockholder’s delivery to the Company of a completed Letter of Transmittal, pay, or cause the Surviving Corporation to pay, all amounts that would previously have been payable with respect to such Outstanding Shares pursuant to this Article 2 had such Letter of Transmittal been delivered on or prior to the Closing Date; and (ii) with respect to each holder of an In-the-Money Option who shall not have delivered to the Company, on or prior to the Closing Date, an Option Surrender Form, Parent shall, promptly (but in no event later than five Business Days) following such holder’s delivery to the Surviving Corporation of a completed Option Surrender Form, cause the Surviving Corporation to pay, to such holder, all amounts that would previously have been payable with respect to such In-the-Money Option pursuant to this Article 2 had such Option Surrender Form been delivered on or prior to the Closing Date, provided, however, that if any holder of an In-the-Money Option has not delivered an Option Surrender Form to the Surviving Corporation prior to the time set forth in Section 2.05(i), then the cash otherwise payable to the holder of such In-the-Money Options shall become the property of Parent, free and clear of all claims and interest of any Person previously entitled thereto.