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

Post-Closing Merger Consideration Adjustment. Following the Closing Date, the Merger Consideration will be adjusted, if at all, as set forth below: (a) Buyer will prepare and deliver to the Representative within ninety (90) days after the Closing Date (i) an unaudited balance sheet of the Company and its Subsidiaries as of the Adjustment Calculation Time (the “Closing Balance Sheet”), (ii) a statement (the “Closing Statement”) setting forth a calculation of (1) the Closing Net Working Capital, (2) the Closing Cash, (3) the Closing Indebtedness, (4) the Transaction Expenses, (5) Buyer’s calculation of the Final Merger Consideration derived from the foregoing, and (6) with respect to each of the foregoing, the changes in such amounts from the corresponding amounts set forth in the Estimated Closing Statement and (iii) reasonably detailed information and support for the foregoing calculations and proposed changes. The Closing Balance Sheet and Closing Statement will be prepared, and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses will be determined, in each case, in good faith, on a consolidated basis in accordance with the Accounting Principles. For the avoidance of doubt, and without in any way limiting Section 11.03(l), none of the Closing Net Working Capital, the Closing Cash, the Closing Indebtedness or the Transaction Expenses shall take into account in any manner NuPark or any of NuPark’s Subsidiaries. If Buyer fails to timely deliver the Closing Balance Sheet and the Closing Statement, in accordance with this Section 1.08(a), then the Representative may, at its election, either (i) treat the estimates delivered pursuant to Section 1.05(a) as the Closing Balance Sheet and the Closing Statement and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses, as final and binding upon the Parties or (ii) treat such estimates as the Closing Balance Sheet and Closing Statement delivered by Buyer pursuant to this Section 1.08(a), in which case, Seller shall be entitled to all dispute and other rights set forth in the remainder of this Section 1.08 with respect thereto. (b) On or prior to the sixtieth (60th) day following Buyer’s delivery of the Closing Balance Sheet and the Closing Statement, the Representative may give Buyer a written notice stating in reasonable detail the Representative’s objections (a “Notice of Disagreement”) to the Closing Balance Sheet and the Closing Statement. During such 60‑day period, and any period of dispute thereafter with respect to such Closing Balance Sheet and/or Closing Statement, Buyer will, and will cause the Surviving Corporation and its Subsidiaries to, (i) provide the Representative and its Advisors reasonable access to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel of the Surviving Corporation and its Subsidiaries (including Surviving Corporation personnel responsible for accounting and finance and senior management) and, subject to execution of any customary work paper access letters required by them, the Surviving Corporation’s accountants and their work papers, and (ii) otherwise cooperate with and assist the Representative and its Advisors in connection with such review. Any determination set forth on the Closing Statement which is not specifically objected to in the Notice of Disagreement will be deemed acceptable to the Representative, and will be final and binding upon all Parties upon delivery of the Notice of Disagreement. If the Representative does not deliver to Buyer a Notice of Disagreement within such 60‑day period, then the Closing Balance Sheet, the Closing Statement and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses will be final and binding upon the Parties as of the expiration of such 60‑day period, and the Final Merger Consideration set forth in the Closing Statement will constitute the Final Merger Consideration for all purposes of this Section 1.08. (c) Following Buyer’s receipt of any Notice of Disagreement, the Representative and Buyer may attempt to negotiate in good faith to resolve the disputed matters set forth therein, and all such discussions and negotiations related thereto shall (unless otherwise agreed by Buyer and the Representative) 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. In the event that the Representative and Buyer fail to agree on any of the Representative’s proposed adjustments set forth in the Notice of Disagreement within thirty (30) days after Buyer receives the Notice of Disagreement (or such longer period as agreed by Buyer and the Representative in writing), the Representative and Buyer agree to use their respective reasonable best efforts to cause Deloitte & Touche LLP (provided that if Deloitte & Touche LLP is unable or unwilling to serve in such capacity, the Representative and Buyer shall jointly select an alternative firm that is a nationally recognized independent accounting or valuation firm (the “Firm”), within forty‑five (45) days immediately following such first 30‑day period, to make the final written determination of all matters which remain in dispute that were included in the Notice of Disagreement. Buyer and the Representative will instruct the Firm to, and the Firm will, make a final determination of the items included in the Closing Balance Sheet and the Closing Statement (to the extent such amounts are in dispute) solely in accordance with this Agreement, acting as an expert and not as an arbitrator. Buyer and the Representative will execute a customary engagement letter and will cooperate with the Firm during the term of its engagement. Buyer and the Representative will instruct the Firm not to, and the Firm will not, assign a value to any item in dispute greater than the greatest value for such item assigned by Buyer, on the one hand, or the Representative, on the other hand, or less than the smallest value for such item assigned by Buyer, on the one hand, or the Representative, on the other hand. Buyer and the Representative will also instruct the Firm to, and the Firm will, make its determination based solely on the terms and provisions of this Agreement and on written submissions by Buyer and the Representative that are in accordance with this Agreement (i.e., not on the basis of an independent review). The Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses, in each case, as determined by the Firm in accordance with this Section 1.08(c), will be final and binding on the Parties on the date the Firm delivers its final determination in writing to Buyer and the Representative. The date on which the Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses are finally determined pursuant to Section 1.08(b), are agreed upon by Buyer and the Representative pursuant to this Section 1.08(c) or are determined by the Firm in accordance with this Section 1.08(c) is referred to as the “Settlement Date.” The fees, costs and expenses of the Firm will be allocated between Buyer, on the one hand, and Representative (on behalf of the Stockholders and Optionholders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Firm that is unsuccessfully disputed by such Party (as finally determined by the Firm) bears to the total amount of disputed items submitted. For example, if the Representative submits a Notice of Disagreement for $1,000, and if Buyer contests only $500 of the amount claimed by the Representative, and if the Firm ultimately resolves the dispute by awarding the Representative (on behalf of the Stockholders and Optionholders) $300 of the $500 contested, then the costs and expenses of the Firm will be allocated 60% (i.e., 300/500) to Buyer and 40% (i.e., 200/500) to the Representative (on behalf of the Stockholders and Optionholders). (d) If the Estimated Merger Consideration exceeds the Final Merger Consideration (such excess, the “Excess Amount”), Buyer and the Representative will deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to pay to Buyer (or its designee), within five (5) Business Days after the Settlement Date by wire transfer of immediately available funds, the Excess Amount from the Adjustment Escrow Funds. In the event that the Excess Amount is less than the Adjustment Escrow Funds (such shortfall, the “Remaining Adjustment Escrow Funds”), Buyer and the Representative will, simultaneously with delivery of the instructions in the immediately foregoing sentence, deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to pay the Remaining Adjustment Escrow Funds from the Adjustment Escrow Account to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid to the Stockholders or Optionholders in accordance with each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding pursuant to Section 1.10 and subject to the Surviving Corporation’s receipt of the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. The Adjustment Escrow Funds shall be the sole and exclusive source of recovery for any Excess Amount. (e) If the Final Merger Consideration exceeds the Estimated Merger Consideration (the “Adjustment Amount”), then (i) Buyer will, within five (5) Business Days after the Settlement Date, make payment of the Adjustment Amount by wire transfer of immediately available funds to or as directed by the Representative (or its designee), and (ii) Buyer and the Representative will deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to make payment of the Adjustment Escrow Funds from the Adjustment Escrow Account, within five (5) Business Days after the Settlement Date, to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid to the Stockholders or Optionholders based on each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding pursuant to Section 1.10 and subject to the Surviving Corporation’s receipt of the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. (f) The Parties hereto agree that any payment made pursuant to this Section 1.08 shall be treated for all purposes as an adjustment to the Merger Consideration, unless otherwise required by applicable Law.

Post-Closing Merger Consideration Adjustment. Following (a) As soon as practicable, but in no event more than one hundred and twenty (120) days following the Closing Date, the Merger Consideration will be adjusted, if at all, as set forth below: (a) Buyer will Surviving Corporation shall prepare and deliver to the Stockholders’ Representative within ninety a statement (90the “Initial Closing Statement”) days after setting forth (i) Parent and Surviving Corporation’s reasonable, good faith determination of the Working Capital as of the close of business on the Closing Date (ithe “Closing Date Working Capital”), (ii) Parent and Surviving Corporation’s reasonable, good faith determination of all Cash of the Company, as of the close of business on the Closing Date (the “Closing Date Cash”), (iii) Parent and Surviving Corporation’s reasonable, good faith determination of all Indebtedness of the Company, as of the close of business on the Closing Date (the “Closing Date Indebtedness”), (iv) an unaudited unaudited, consolidated balance sheet of the Company and its Subsidiaries as of the Adjustment Calculation Time Closing Date (the “Closing Balance Sheet”), (iiv) a statement all Transaction Expenses (the “Closing StatementDate Transaction Expenses”) setting forth a calculation of and (1vi) the Closing Net Working CapitalSurviving Corporation’s reasonable, (2) the Closing Cash, (3) the Closing Indebtedness, (4) the Transaction Expenses, (5) Buyer’s good faith calculation of the Final Merger Consideration derived from the foregoing, and (6) with respect to each of the foregoing, the changes in such amounts from the corresponding amounts set forth in the Estimated Closing Statement and (iii) reasonably detailed information and support for the foregoing calculations and proposed changes. The Closing Balance Sheet and Closing Statement will be prepared, and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses will be determined, in each case, in good faith, on a consolidated basis in accordance with the Accounting PrinciplesSection 1.9. For the avoidance of doubt, and without in any way limiting Section 11.03(l), none of The Initial Closing Statement (including the Closing Net Date Working Capital, the Closing Date Cash, the Closing Indebtedness or the Transaction Expenses shall take into account in any manner NuPark or any of NuPark’s Subsidiaries. If Buyer fails to timely deliver Date Indebtedness, the Closing Balance Sheet and the Closing Statement, Date Transaction Expenses) shall be prepared and calculated reasonable and in good faith in accordance with this Section 1.08(a)GAAP (and, then to the Representative mayextent not inconsistent with GAAP, at its electionusing the same accounting policies, either (i) treat the estimates delivered pursuant to Section 1.05(a) principles, methodologies and preparations as the Closing Balance Sheet Audited Financials) or as otherwise expressly provided in the applicable definitions of this Agreement and Exhibits, without giving effect to the Closing Statement and Contemplated Transactions (other than as relates to the Closing Net Working Capital, Closing Cash, Closing Indebtedness and calculation of Transaction Expenses, as final and binding upon the Parties or (ii) treat such estimates as the Closing Balance Sheet and Closing Statement delivered by Buyer pursuant to this Section 1.08(a), in which case, Seller shall be entitled to all dispute and other rights set forth in the remainder of this Section 1.08 with respect thereto. (b) On or prior to the sixtieth (60th) day following Buyer’s delivery of the Closing Balance Sheet and the Closing Statement, the Representative may give Buyer a written notice stating in reasonable detail the Representative’s objections (a “Notice of Disagreement”) to the Closing Balance Sheet and the Closing Statement. During such 60‑day period, and any period of dispute thereafter with respect to such Closing Balance Sheet and/or Closing Statement, Buyer will, and will cause the Surviving Corporation and its Subsidiaries to, (i) provide the The Stockholders’ Representative and its Advisors reasonable access to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel accountants shall complete their review of the Surviving Corporation and its Subsidiaries (including Surviving Corporation personnel responsible for accounting and finance and senior management) and, subject to execution of any customary work paper access letters required by them, the Surviving Corporation’s accountants and their work papers, and (ii) otherwise cooperate with and assist the Representative and its Advisors in connection with such review. Any determination set forth on the Initial Closing Statement which is not specifically objected to in the Notice of Disagreement will be deemed acceptable to the Representative, and will be final and binding upon all Parties upon delivery of the Notice of Disagreement. If the Representative does not deliver to Buyer a Notice of Disagreement within such 60‑day period, then the Closing Balance Sheet, the Closing Statement and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses will be final and binding upon the Parties as of the expiration of such 60‑day period, and the Final Merger Consideration set forth in the Closing Statement will constitute the Final Merger Consideration for all purposes of this Section 1.08. (c) Following Buyer’s receipt of any Notice of Disagreement, the Representative and Buyer may attempt to negotiate in good faith to resolve the disputed matters set forth therein, and all such discussions and negotiations related thereto shall (unless otherwise agreed by Buyer and the Representative) 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. In the event that the Representative and Buyer fail to agree on any of the Representative’s proposed adjustments set forth in the Notice of Disagreement within thirty (30) days after Buyer receives the Notice Surviving Corporation’s delivery thereof to Stockholders’ Representative. During such review period, the Surviving Corporation shall provide Stockholders’ Representative with access to all books and records reasonably requested by Stockholders’ Representative to review the Initial Closing Statement (including the calculation and preparation of Disagreement (or such longer period as agreed by Buyer the Closing Date Working Capital, Closing Date Cash, Closing Date Indebtedness, Closing Date Transaction Expenses and the Representative in writingClosing Balance Sheet), any work papers prepared by the Surviving Corporation or its accountants, subject to the internal policies of the Surviving Corporation’s accountants, in connection with such calculations, and the Surviving Corporation shall make reasonably available its Representatives responsible for the preparation of the Initial Closing Statement in order to respond to the inquiries of Stockholders’ Representative. If Stockholders’ Representative objects to the contents of the Initial Closing Statement for any reason, Stockholders’ Representative shall, on or before the last day of such 30-day period, so inform the Surviving Corporation and Buyer agree to use their respective reasonable best efforts to cause Deloitte & Touche LLP Parent in writing (provided that if Deloitte & Touche LLP is unable or unwilling to serve in such capacity, the Representative and Buyer shall jointly select an alternative firm that is a nationally recognized independent accounting or valuation firm (the “FirmStockholders’ Objection”), within forty‑five (45) days immediately following such first 30‑day periodsetting forth, to make the final written determination of all matters which remain in dispute that were included in the Notice of Disagreement. Buyer and the Representative will instruct the Firm to, and the Firm will, make a final determination of the items included in the Closing Balance Sheet and the Closing Statement (to the extent known, a specific description of the basis of its determination and the adjustments to the Initial Closing Statement that the Stockholders’ Representative believes should be made. To the extent any disagreement therewith is not described in a Stockholders’ Objection received by Surviving Corporation on or before the last day of such amounts 30-day period, then all items described in the Initial Closing Statement delivered by the Surviving Corporation to Stockholders’ Representative shall be deemed agreed, final and binding on the parties. (c) If Stockholders’ Representative timely delivers a Stockholders’ Objection to the Surviving Corporation and Parent, and Stockholders’ Representative and the Surviving Corporation are unable to resolve all of their disagreements with respect to the proposed adjustments set forth in disputeStockholders’ Objection within thirty (30) solely in accordance with this Agreementdays following the Surviving Corporation’s receipt of Stockholders’ Objection, then they shall jointly retain the CPA Firm, which, acting as an expert and neutral and not as an arbitrator, shall determine, on the basis set forth in and in accordance with this Section 1.11, and only with respect to those items or any line items within the calculation of the Closing Date Working Capital specifically described in Stockholders’ Objection, in each case, on which the Surviving Corporation and Stockholders’ Representative have not agreed (the “Disputed Items”), whether and to what extent, if any, the Merger Consideration requires adjustment. Buyer The Surviving Corporation and Stockholders’ Representative shall instruct the CPA Firm to deliver its written determination to the Surviving Corporation and Stockholders’ Representative no later than thirty (30) days after submitting the Disputed Items to it for resolution. At the time of retention of the CPA Firm the Surviving Corporation shall specify in writing to the CPA Firm and Stockholders’ Representative the amount of the Surviving Corporation’s computation of the Disputed Items and the Merger Consideration (the “Surviving Corporation’s Position”), and Stockholders’ Representative will execute a customary engagement letter shall specify in writing to the CPA Firm and will cooperate with to the Firm during Surviving Corporation the term amount of its engagement. Buyer computation of the Disputed Items and the Merger Consideration (the “Stockholders’ Position”). CPA Firm’s determination shall be conclusive and binding upon the Parent, Surviving Corporation, Stockholders’ Representative will instruct and Stockholders absent manifest error (which includes, for this purpose, any calculation error or failure to adhere to the terms of this Agreement). In resolving any Disputed Item, the CPA Firm may not to, and the Firm will not, assign a value to any item in dispute Disputed Item that is greater than the greatest value for such item assigned claimed by Buyer, on the one hand, Surviving Corporation or Stockholders’ Representative at the Representative, on time the other hand, CPA Firm is retained or less than the smallest value claimed for the Disputed Item by the Surviving Corporation or Stockholders’ Representative at such item assigned time. The scope of the dispute(s) to be resolved by Buyerthe CPA Firm is limited to whether the Disputed Items were prepared and calculated in a manner consistent with the provisions, on the one hand, or the Representative, on the other hand. Buyer and the Representative will also instruct the Firm todefinitions, and the Firm will, make its determination based solely on the terms and provisions Exhibits of this Agreement and on written submissions by Buyer mathematically accurate, and the CPA Firm is not to make any other determination unless jointly requested in writing by Stockholders’ Representative that are in accordance with this Agreement (i.e., not on the basis of an independent review). The Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working CapitalSurviving Corporation. All fees and expenses relating to the work, Closing Cashif any, Closing Indebtedness and Transaction Expenses, in each case, as determined to be performed by the CPA Firm in accordance with this Section 1.08(c), will be final and binding on the Parties on the date the Firm delivers its final determination in writing to Buyer and the Representative. The date on which the Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses are finally determined pursuant to Section 1.08(b), are agreed upon by Buyer and the Representative pursuant to this Section 1.08(c) or are determined by the Firm in accordance with this Section 1.08(c) is referred to as (the “Settlement Date.” The fees, costs and expenses of the Firm Merger Consideration Dispute Expenses”) will be allocated between BuyerParent, on the one hand, and Representative (on behalf of the Stockholders and Optionholders)Stockholders, on the other hand, in the same proportion that the aggregate amount of the disputed items Disputed Items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the CPA Firm) bears to the total disputed amount of disputed such items so submitted. For exampleThe Surviving Corporation, if the Parent and Stockholders’ Representative submits a Notice shall cooperate with the CPA Firm during its resolution of Disagreement for $1,000the disagreement and make readily available to the CPA Firm all relevant personnel and Representatives, books and records and any work papers (including those of the parties’ respective accountants, to the extent permitted by such accountants, and if Buyer contests only $500 of Representatives) relating to amounts set forth in the amount claimed Initial Closing Statement and Stockholders’ Objection and all other items reasonably requested by the Representative, and if the CPA Firm ultimately resolves the dispute by awarding the Representative (on behalf of the Stockholders and Optionholders) $300 of the $500 contested, then the costs and expenses of the Firm will be allocated 60% (i.e., 300/500) to Buyer and 40% (i.e., 200/500) to the Representative (on behalf of the Stockholders and Optionholders)in connection therewith. (d) The Initial Closing Statement, including the Closing Balance Sheet, Closing Date Cash, Closing Date Indebtedness, Closing Date Transaction Expenses and the Closing Date Working Capital, as agreed to (or deemed to have been agreed to in accordance with the foregoing) between the Surviving Corporation and Stockholders’ Representative or as determined by the CPA Firm, as applicable, shall be conclusive and binding on all of the parties hereto absent manifest error (which includes, for this purpose, any calculation error or failure to adhere to the terms of this Agreement), and all Stockholders and shall be deemed the “Actual Closing Balance Sheet,” “Actual Cash,” “Actual Indebtedness”, “Actual Transaction Expenses” and “Actual Working Capital,” respectively, for all purposes herein. (e) Upon completion of the calculation of the Actual Closing Balance Sheet, Actual Cash, Actual Indebtedness, Actual Transaction Expenses and Actual Working Capital in accordance with this Section 1.11, the Merger Consideration shall be recalculated, and the following adjustments (the “Merger Consideration Adjustment”) made: (i) If the Estimated Merger Consideration exceeds calculated using the Final Actual Working Capital, Actual Cash, Actual Transaction Expenses and Actual Indebtedness is greater than the Merger Consideration calculated using the Estimated Working Capital, Estimated Cash, Estimated Transaction Expenses and Estimated Indebtedness, then Parent shall promptly (but in no event later than three (3) Business Days after the final determination) pay, or cause to be paid, such excess, difference in cash to the “Excess Amount”), Buyer Exchange Agent and the Representative will deliver joint written instructions NWC Escrow Amount shall be released and paid to the Escrow Agent to cause Exchange Agent; or (ii) If the Merger Consideration calculated using the Actual Working Capital, Actual Cash, Actual Transaction Expenses and Actual Indebtedness is less than the Merger Consideration calculated using the Estimated Working Capital, Estimated Cash, Estimated Transaction Expenses and Estimated Indebtedness, then Stockholders’ Representative shall direct the Escrow Agent to pay to Buyer such difference promptly from the NWC Escrow Amount (or its designee), within five but in no event later than three (53) Business Days after the Settlement Date by wire transfer of immediately available funds, the Excess Amount from the Adjustment Escrow Funds. In the event that the Excess Amount is less than the Adjustment Escrow Funds (such shortfall, the “Remaining Adjustment Escrow Funds”), Buyer and the Representative will, simultaneously with delivery of the instructions in the immediately foregoing sentence, deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to pay the Remaining Adjustment Escrow Funds from the Adjustment Escrow Account to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid to the Stockholders or Optionholders in accordance with each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding pursuant to Section 1.10 and subject final determination) to the Surviving Corporation’s receipt of the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. The Adjustment Escrow Funds shall be the sole and exclusive source of recovery for any Excess Amount. (e) If the Final Merger Consideration exceeds the Estimated Merger Consideration (the “Adjustment Amount”), then (i) Buyer will, within five (5) Business Days after the Settlement Date, make payment of the Adjustment Amount by wire transfer of immediately available funds to or as directed by the Representative (or its designee), and (ii) Buyer and the Representative will deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to make payment of the Adjustment Escrow Funds from the Adjustment Escrow Account, within five (5) Business Days after the Settlement Date, to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid to the Stockholders or Optionholders based on each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding pursuant to Section 1.10 and subject to the Surviving Corporation’s receipt of the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. (f) The Parties hereto agree that any payment made Any amounts payable pursuant to this Section 1.08 1.11(e) shall be treated for by all purposes parties as an adjustment adjustments to the Merger ConsiderationConsideration for all federal, unless state, provincial, local and foreign Tax purposes, and the parties agree to file their respective Tax Returns accordingly, except as otherwise required by applicable Law.

Post-Closing Merger Consideration Adjustment. Following (a) As promptly as practicable, but in any case no later than sixty (60) calendar days after the Closing Date, the Merger Consideration will Buyer shall cause to be adjusted, if at all, as set forth below: (a) Buyer will prepare prepared and deliver delivered to the Stockholders’ Representative within ninety (90) days after the Closing Date (i) an unaudited balance sheet of the Company and its Subsidiaries as of the Adjustment Calculation Time (the “Closing Balance Sheet”), (ii) a statement (the “Closing Statement”) setting forth a calculation of (1) the Closing Net Working Capital, (2) the Closing Cash, (3) the Closing Indebtedness, (4) the Transaction Expenses, (5) Buyer’s calculation of the Final Merger Consideration derived from the foregoing, and (6) with respect to each of the foregoing, the changes in such amounts from the corresponding amounts set forth in the Estimated Closing Statement and (iii) reasonably detailed information and support for the foregoing calculations and proposed changes. The Closing Balance Sheet and Closing Statement will be prepared, and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses will be determined, in each case, in good faith, on a consolidated basis in accordance with the Accounting Principles. For the avoidance of doubt, and without in any way limiting Section 11.03(l), none of the Closing Net Working Capital, the Closing CashNet Funded Indebtedness, the Closing Indebtedness or Transaction Related Expenses (to the Transaction Expenses shall take into account in any manner NuPark extent not paid by the Company or any of NuPark’s Subsidiaries. If Buyer fails its Affiliates prior to timely deliver the Closing Balance Sheet and the Closing Statement, in accordance with this Section 1.08(a), then the Representative may, at its election, either Closing) (i) treat the estimates delivered pursuant to Section 1.05(a) as the Closing Balance Sheet and the Closing Statement and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and except for any such Transaction Expenses, as final and binding upon the Parties Related Expenses reimbursable or (ii) treat such estimates as the Closing Balance Sheet and Closing Statement delivered indemnifiable by Buyer pursuant to this Agreement (including Section 1.08(a6.2 and Section 12.7)) and the components thereof. The Closing Statement shall include the amount calculated in good faith by Buyer, in which caseif any, Seller of the Merger Consideration Escrow Amount that need not be retained by the Escrow Agent pending resolution of payments to be made pursuant to Section 2.11(d) (the “Merger Consideration Escrow Release Amount”). The Merger Consideration Escrow Release Amount, to the extent there is such an amount, shall be entitled to all dispute and other rights set forth in the remainder of this Section 1.08 with respect thereto. released two (b2) On or prior to the sixtieth (60th) day Business Days following Buyer’s delivery of the Closing Balance Sheet Statement. The Closing Statement and the Net Working Capital, the Net Funded Indebtedness and the Transaction Related Expenses (to the extent not paid by the Company or any of its Affiliates prior to the Closing) (except for any such Transaction Related Expenses reimbursable or indemnifiable by Buyer pursuant to this Agreement (including Section 6.2 and Section 12.7)) calculations shall be prepared and calculated in good faith, and in the manner and on a basis consistent with the Accounting Principles (to the extent applicable) and shall be in the same form and include the same line items as the Estimated Net Working Capital calculation, the Estimated Net Funded Indebtedness calculation and the Estimated Transaction Related Expenses calculation. If the Closing Statement is not so timely delivered, the Estimated Net Working Capital, the Estimated Net Funded Indebtedness and the Estimated Transaction Related Expenses will be deemed Final Net Working Capital, Final Net Funded Indebtedness and Final Transaction Related Expenses, respectively. (b) After receipt of the Closing Statement, the Stockholders’ Representative may give Buyer a written notice stating in reasonable detail the Representative’s objections will have forty five (a “Notice of Disagreement”45) calendar days to the Closing Balance Sheet and review the Closing Statement. During Unless the Stockholders’ Representative delivers written notice (which notice shall include the items and amounts in dispute and supporting documentation related thereto; such 60‑day periodnotice, and any period of dispute thereafter a “Seller Dispute Notice”) to Buyer setting forth the items disputed by the Stockholders’ Representative with respect thereto on or prior to such Closing Balance Sheet and/or the forty-fifth (45th) calendar day after the Stockholders’ Representative’s receipt of the Closing Statement, Buyer will, and will cause the Surviving Corporation and its Subsidiaries to, (i) provide the Stockholders’ Representative and its Advisors reasonable access to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel of the Surviving Corporation and its Subsidiaries (including Surviving Corporation personnel responsible for accounting and finance and senior management) and, subject to execution of any customary work paper access letters required by them, the Surviving Corporation’s accountants and their work papers, and (ii) otherwise cooperate with and assist the Representative and its Advisors in connection with such review. Any determination set forth on the Closing Statement which is not specifically objected to in the Notice of Disagreement will be deemed acceptable to the Representative, have accepted and will be final and binding upon all Parties upon delivery of the Notice of Disagreement. If the Representative does not deliver agreed to Buyer a Notice of Disagreement within such 60‑day period, then the Closing Balance Sheet, the Closing Statement and such statement (and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses calculations contained therein) will be final final, binding and binding upon conclusive, absent manifest error or fraud. If the Parties as Stockholders’ Representative notifies Buyer of the expiration of such 60‑day period, and the Final Merger Consideration set forth its objections to items contained in the Closing Statement will constitute the Final Merger Consideration for all purposes of this Section 1.08. (cor calculations contained therein) Following Buyer’s receipt of any Notice of Disagreementwithin such forty five (45) calendar day period, the Representative and Buyer may attempt to negotiate in good faith to resolve the disputed matters set forth therein, and all such discussions and negotiations related thereto shall (unless otherwise agreed by Buyer and the Representative) be governed by Rule 408 of Stockholders’ Representative shall, during the Federal Rules of Evidence (as in effect as of the date of this Agreement) and any applicable similar state rule. In the event that the Representative and Buyer fail to agree on any of the Representative’s proposed adjustments set forth in the Notice of Disagreement within thirty (30) calendar days after following delivery of such notice by the Stockholders’ Representative to Buyer receives the Notice of Disagreement (or such longer period as agreed they may mutually agree in writing) (the “Resolution Period”), attempt in good faith to resolve their differences with respect to the disputed items (or calculations) such notice (the “Disputed Items”), and all other items (and all calculations relating thereto) will be final, binding and conclusive, absent manifest error or fraud. Any resolution by Buyer and the Stockholders’ Representative during the Resolution Period as to any Disputed Item shall be set forth in writing)writing and will be final, the Representative binding and Buyer agree to use their respective reasonable best efforts to cause Deloitte & Touche LLP conclusive, absent manifest error or fraud. (provided that if Deloitte & Touche LLP is unable or unwilling to serve in such capacity, the Representative and Buyer shall jointly select an alternative firm that is a nationally recognized independent accounting or valuation firm (the “Firm”), within forty‑five (45c) days immediately following such first 30‑day period, to make the final written determination of all matters which remain in dispute that were included in the Notice of Disagreement. If Buyer and the Stockholders’ Representative do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute will instruct be submitted to the Firm toNeutral Arbitrator. The Neutral Arbitrator shall act as an arbitrator to determine only those Disputed Items remaining in dispute, consistent with this Section 2.11, and the Firm will, make shall request a final determination of the items included in the Closing Balance Sheet and the Closing Statement (to the extent such amounts are in dispute) solely in accordance with this Agreement, acting as an expert and not as an arbitrator. statement from Buyer and the Stockholders’ Representative will execute a customary engagement letter and will cooperate with regarding such Disputed Items. The scope of the Firm during disputes to be arbitrated by the term of its engagement. Neutral Arbitrator is limited to those items or calculations specifically in dispute between Buyer and the Representative will instruct the Firm not to, Stockholders’ Representative; and the Firm will notNeutral Arbitrator is not to make any other determination. In resolving each Disputed Item, the Neutral Arbitrator shall be bound by the principles set forth in this Section 2.11 and may not assign a value to any item in dispute Disputed Item greater than the greatest value for such item assigned Disputed Item claimed by Buyer, on the one hand, or the Representative, on the other hand, any party or less than the smallest lowest value for such item assigned Disputed Item claimed by Buyer, on any party. The parties further agree that the one hand, or adjustment contemplated by this Section 2.11 is intended to show the Representative, on change between the other hand. Buyer Estimated Net Working Capital and the Representative will also instruct the Firm to, and the Firm will, make its determination based solely on the terms and provisions of this Agreement and on written submissions by Buyer and the Representative that are in accordance with this Agreement (i.e., not on the basis of an independent review). The Closing Balance Sheet, the Closing Statement and the resulting Closing Final Net Working Capital, Closing Cash, Closing the change between the Estimated Net Funded Indebtedness and the Final Net Funded Indebtedness and the change between Estimated Transaction Related Expenses and Final Transaction Related Expenses, and that such changes can only be measured if each calculation is done in each casea manner consistent with the Accounting Principles and the definitions thereof. All fees and expenses relating to the work, as determined if any, to be performed by the Firm in accordance with this Section 1.08(c), will be final and binding on the Parties on the date the Firm delivers its final determination in writing to Buyer and the Representative. The date on which the Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses are finally determined pursuant to Section 1.08(b), are agreed upon by Buyer and the Representative pursuant to this Section 1.08(c) or are determined by the Firm in accordance with this Section 1.08(c) is referred to as the “Settlement Date.” The fees, costs and expenses of the Firm Neutral Arbitrator will be allocated between Buyer, on Buyer and the one hand, and Stockholders’ Representative (on behalf which, in the case of the Stockholders and Optionholders)Stockholders’ Representative, on shall be payable by the other hand, Stockholders’ Representative solely out of the Reserve Amount) in the same proportion that the aggregate amount of the disputed items Disputed Items so submitted to the Firm Neutral Arbitrator that is unsuccessfully disputed by each such Party party (as finally determined by the FirmNeutral Arbitrator) bears to the total amount of disputed items such Disputed Items so submitted. For example, if The Neutral Arbitrator will deliver to Buyer and the Stockholders’ Representative submits a Notice of Disagreement for $1,000, written determination (such determination to include a work sheet setting forth all material calculations used in arriving at such determination and if Buyer contests only $500 to be based solely on information provided to the Neutral Arbitrator by the Stockholders’ Representative and Buyer) of the amount claimed Disputed Items submitted to the Neutral Arbitrator within thirty (30) calendar days of receipt of such Disputed Items, which determination will be final, binding and conclusive, absent manifest error or fraud. The final, binding and conclusive Closing Statement based either upon agreement by the Representativeparties, or deemed agreement by Buyer and if the Firm ultimately resolves Stockholders’ Representative in accordance with this Section 2.11, or the dispute written determination delivered by awarding the Representative (on behalf of Neutral Arbitrator in accordance with this Section 2.11(c) will be the Stockholders and Optionholders) $300 of “Conclusive Closing Statement.” If any party fails to submit a statement regarding any Disputed Item submitted to the $500 contestedNeutral Arbitrator within the time determined by the Neutral Arbitrator or otherwise fails to give the Neutral Arbitrator access as reasonably requested, then the costs Neutral Arbitrator shall render a decision based solely on the evidence timely submitted and expenses the access afforded to the Neutral Arbitrator by the other party. Except in instances involving fraud or except as may arise out of the Firm will be allocated 60% (i.e., 300/500) to Buyer representations and 40% (i.e., 200/500) warranties under Article III and Article IV and in such instances only to the extent set forth in this Agreement, neither any Stockholder, holder of Company Stock Options or the Stockholder Representative shall have any liability with respect to Funded Indebtedness, Closing Date Funded Indebtedness, Transactions Related Expenses, or current assets or current liabilities (on behalf including as to accounts receivable and the collectability thereof) or any other component of the Stockholders and Optionholders)Net Working Capital except as determined in this Section 2.11. (d) If the Estimated Merger Consideration exceeds Within two (2) Business Days after the Final Merger Consideration Amounts have been determined in accordance with this Section 2.11: (such excessi) if the Aggregate Common Equity Amount is greater than the Final Payment Amount, then the “Excess Amount”), Stockholders’ Representative and Buyer and the Representative will deliver joint written instructions to the Escrow Agent to cause shall instruct the Escrow Agent to pay to Buyer the Surviving Corporation, using first the funds in the Merger Consideration Escrow Account and, to the extent the funds in the Merger Consideration Escrow Account are not sufficient to satisfy such payment in full, then out of the funds in the General Escrow Account, an amount in cash equal to the amount by which the Aggregate Common Equity Amount is greater than the Final Payment Amount (or its designeeas defined below), within five ; and (5ii) Business Days after if the Settlement Date by wire transfer of immediately available funds, the Excess Amount from the Adjustment Escrow Funds. In the event that the Excess Aggregate Common Equity Amount is less than the Adjustment Escrow Funds Final Payment Amount (such shortfall, the “Remaining Adjustment Escrow Funds”as defined below), Buyer and the Representative willshall pay, simultaneously with delivery of the instructions in the immediately foregoing sentence, deliver joint written instructions to the Escrow Agent to or cause the Escrow Agent to pay the Remaining Adjustment Escrow Funds from the Adjustment Escrow Account to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid to the Stockholders or Optionholders in accordance with each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding pursuant to Section 1.10 and subject pay, to the Surviving Corporation’s receipt of Stockholders’ Representative (for further pro rata distribution to the applicable duly executed Option Cancellation Agreement, and Fully Diluted Common Holders) an amount in cash equal to the Surviving Corporation shall make such payments as directed amount by which the Representative promptly following receipt thereof. The Adjustment Escrow Funds shall be the sole and exclusive source of recovery for any Excess Amount. (e) If Aggregate Common Equity Amount is less than the Final Merger Consideration exceeds the Estimated Merger Consideration (the “Adjustment Amount”), then (i) Buyer will, within five (5) Business Days after the Settlement Date, make payment of the Adjustment Payment Amount by wire transfer of immediately available funds (the amount payable to or as directed by the Representative (or its designee), and (iiBuyer pursuant to Section 2.11(d)(i) Buyer and the Representative will deliver joint written instructions amount payable to the Escrow Agent Stockholders’ Representative pursuant to cause this Section 2.11(d)(ii) are referred to herein as the Escrow Agent to make payment “Merger Consideration Adjustment Amount”); provided that any portion of the Adjustment Escrow Funds from the Adjustment Escrow Account, within five (5any amount payable under this Section 2.11(d)(ii) Business Days after the Settlement Date, to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to that is a Compensatory Payment shall not be paid to the Stockholders or Optionholders based on each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed Stockholders’ Representative but shall instead be paid by the Representative, be remitted to the Surviving Corporation for payment to such Persons (or a Subsidiary of the Surviving Corporation) through its payroll system and in accordance with the Surviving Corporation’s (or such Subsidiary’s) standard withholding and payroll practices and procedures after applicable Tax withholding pursuant to Section 1.10 and subject to the Surviving Corporation’s receipt of Person identified in writing by the applicable duly executed Option Cancellation AgreementStockholders’ Representative as the Person to whom such Compensatory Payment is to be made. Any payment by Buyer, and the Surviving Corporation shall make such payments or the Stockholders’ Representative (pursuant to the distribution of funds from the Merger Consideration Escrow Account or the General Escrow Account), as directed by the Representative promptly following receipt thereof. (f) The Parties hereto agree that any payment made case may be, pursuant to this Section 1.08 shall 2.11 will be treated for all purposes as an adjustment to the Merger Consideration, unless otherwise required by applicable Law.Consideration for tax purposes. For purposes of this Section 2.11:

Post-Closing Merger Consideration Adjustment. Following (a) Within one hundred twenty (120) days after the Closing Date, the Merger Consideration will be adjusted, if at all, as set forth below: (a) Buyer will Purchaser shall prepare and deliver to the Shareholder Representative within ninety (90) days after the Closing Date (i) an unaudited balance sheet of the Company and its Subsidiaries as of the Adjustment Calculation Time (the “Closing Balance Sheet”), (ii) a statement (the “Closing Statement”) setting forth a calculation of Purchaser’s good faith determination of: (1i) the Net Working Capital; (ii) the Closing Net Working CapitalDate Cash, (2iii) the Closing CashDate Indebtedness, (3iv) the Closing Indebtedness, (4) the Date Company Transaction Expenses, (5v) Buyer’s calculation any Unpaid Taxes and (vi) the amount by which (A) the sum (which may be a negative number) of the Final Merger Consideration derived from Net Working Capital (which may be a negative number), plus the foregoingClosing Date Cash, minus the Closing Date Indebtedness, minus the Closing Date Company Transaction Expenses and minus any Unpaid Taxes, in each case as shown on the Closing Statement, exceeds or is less than (6B) with respect to each the sum (which may be a negative number) of the foregoingNet Working Capital (which may be a negative number), plus the changes Closing Date Cash, minus the Closing Date Indebtedness, minus the Closing Date Company Transaction Expenses and minus the Unpaid Taxes, in such amounts from the corresponding amounts set forth in each case as shown on the Estimated Closing Statement (the amount of such excess (including any decrease in a negative sum) being a “Net Increase”, and the amount of such shortfall (iiiincluding any increase in a negative sum) reasonably detailed information and support for being a “Net Decrease”), which statement shall also set forth in reasonable detail Purchaser’s calculation of such amounts in the foregoing calculations and proposed changespreceding clauses (i) through (v). The Closing Balance Sheet and Closing Statement will be prepared, and the Closing Net Working Capital, Closing Cash, Closing Indebtedness determinations and Transaction Expenses will calculations contained therein shall be determined, in each case, in good faith, on a consolidated basis in accordance with the Accounting Principles. For the avoidance of doubt, and without in any way limiting Section 11.03(l), none of the Closing Net Working Capital, the Closing Cash, the Closing Indebtedness or the Transaction Expenses shall take into account in any manner NuPark or any of NuPark’s Subsidiaries. If Buyer fails to timely deliver the Closing Balance Sheet and the Closing Statement, prepared in accordance with this Agreement, including Section 1.08(a1.11(f), then the Representative may, at its election, either (i) treat the estimates delivered pursuant to Section 1.05(a) as the Closing Balance Sheet and the Closing Statement and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses, as final and binding upon the Parties or (ii) treat such estimates as the Closing Balance Sheet and Closing Statement delivered by Buyer pursuant to this Section 1.08(a), in which case, Seller shall be entitled to all dispute and other rights set forth in the remainder of this Section 1.08 with respect thereto. (b) On or prior to During the sixtieth thirty (60th30) day period following Buyerthe Shareholder Representative’s delivery receipt of the Closing Balance Sheet Statement, Purchaser shall cause the Company to afford the Shareholder Representative and its representatives reasonable opportunity to review the necessary books and records of the Company relating to the preparation of the Closing Statement and discuss the same with appropriate Company employees, in each case as reasonably requested by the Shareholder Representative in connection with its review of the Closing Statement; provided that any such access will be at reasonable times, upon reasonable notice and will not unduly interfere with the Company’s normal business operations. (c) If the Shareholder Representative disagrees with the calculations set forth on the Closing Statement, the Shareholder Representative may give Buyer a may, within thirty (30) days following delivery of the Closing Statement to the Shareholder Representative, deliver to Purchaser written notice stating (the “Objection Notice”) of its objections to any item contained in the Closing Statement, which notice shall set forth in reasonable detail the basis for each such disagreement and the Shareholder Representative’s objections (a “Notice of Disagreement”) to the Closing Balance Sheet and the Closing Statement. During such 60‑day period, and any period of dispute thereafter with respect to such Closing Balance Sheet and/or Closing Statement, Buyer will, and will cause the Surviving Corporation and its Subsidiaries to, (i) provide the Representative and its Advisors reasonable access to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel determination of the Surviving Corporation and its Subsidiaries (including Surviving Corporation personnel responsible for accounting and finance and senior management) andNet Increase or Net Decrease, subject to execution of any customary work paper access letters required by them, the Surviving Corporation’s accountants and their work papers, and (ii) otherwise cooperate with and assist the as applicable. The Shareholder Representative and its Advisors in connection with such review. Any determination set forth on the Closing Statement which is not specifically objected to in the Notice of Disagreement will be deemed acceptable to the Representative, and will be final and binding upon all Parties upon delivery of the Notice of Disagreementmay only deliver one Objection Notice. If the Shareholder Representative does not deliver to Buyer a an Objection Notice of Disagreement within such 60‑day thirty (30) day period, then the Closing Balance Sheet, Equityholders and the Shareholder Representative shall be conclusively deemed to have waived any right to object to the Closing Statement delivered by Purchaser and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses will be Statement shall become final and binding upon on the Parties as of the upon expiration of such 60‑day thirty (30) day period. If the Shareholder Representative delivers to Purchaser an Objection Notice within such thirty (30) day period, Purchaser and the Final Merger Consideration set forth in the Closing Statement will constitute the Final Merger Consideration for all purposes of this Section 1.08. (c) Following Buyer’s receipt of any Notice of Disagreement, the Shareholder Representative and Buyer may attempt to negotiate shall endeavor in good faith to resolve the disputed matters set forth thereinobjections, and all such discussions and negotiations related thereto shall for a period not to exceed fifteen (unless otherwise agreed by Buyer and the Representative15) be governed by Rule 408 of the Federal Rules of Evidence (as in effect as of days from the date of this Agreementdelivery of the Objection Notice. (d) If Purchaser and the Shareholder Representative resolve all of the disputed items in the Objection Notice within fifteen (15) days following Purchaser’s receipt of the Objection Notice (or such longer period as Purchaser and the Shareholder Representative may mutually agree in writing), the Closing Statement shall be revised to reflect such resolution, and as so revised shall be final and binding on the Parties. If at the end of such fifteen (15) day period (or such longer period as Purchaser and the Shareholder Representative may mutually agree in writing) there are any applicable similar state rule. In objections that remain in dispute regarding the event items detailed in the Objection Notice, then the remaining objections in dispute shall be submitted, but only such matters and amounts that were included in the Objection Notice and not then resolved in writing by Purchaser and the Shareholder Representative, for resolution to Duff & Xxxxxx or if Xxxx & Xxxxxx is unable or unwilling to take such assignment, a nationally recognized accounting firm to be selected jointly by the Shareholder Representative and Buyer fail to Purchaser or, if Purchaser and the Shareholder Representative cannot agree on any of the Representative’s proposed adjustments set forth in the Notice of Disagreement an accounting firm within thirty (30) days after Buyer receives timely delivery of the Notice Objection Notice, each of Disagreement (or such longer period as agreed by Buyer Purchaser and the Shareholder Representative in writing), the Representative and Buyer agree to use their respective reasonable best efforts to cause Deloitte & Touche LLP (provided that if Deloitte & Touche LLP is unable or unwilling to serve in such capacity, the Representative and Buyer shall jointly select an alternative firm that is a nationally recognized independent accounting firm and such two accounting firms shall designate a third nationally recognized accounting firm that neither presently is, nor in the past three years has been, engaged by any Party or valuation their Affiliates. Duff & Xxxxxx, the accounting firm (so agreed to by Purchaser and the Shareholder Representative or the third accounting firm so selected by the two accounting firms is hereinafter referred to as the “Accounting Firm”), within forty‑five (45) days immediately following such first 30‑day period, . The Accounting Firm shall act as experts and not arbitrators and shall decide all issues set forth in the Objection Notice that remain disputed by the Parties and required to be decided in order for the Accounting Firm to make the final written determination of all matters which remain in dispute that were included in the Notice of Disagreement. Buyer and the Representative will instruct the Firm to, and the Firm will, make a its final determination of the Net Working Capital, Closing Date Cash, Closing Date Indebtedness and Closing Date Company Transaction Expenses, including issues of contract construction, identification of the issues that are disputed by the Parties, and whether an issue is subject to determination by the Accounting Firm. In resolving the items included in the Objection Notice that are still in dispute and in determining the Net Working Capital, Closing Balance Sheet and Date Cash, Closing Date Indebtedness or Closing Date Company Transaction Expenses, the Closing Statement Accounting Firm shall (to the extent such amounts are in disputei) solely in accordance with this Agreement, acting as an expert and not as an arbitrator. Buyer and the Representative will execute a customary engagement letter and will cooperate with the Firm during the term of its engagement. Buyer and the Representative will instruct the Firm not to, and the Firm will not, assign a value to any item in dispute a value that is (A) greater than the greatest value for such item assigned by BuyerPurchaser, on the one hand, or the Shareholder Representative, on the other hand, or (B) less than the smallest value for such item assigned by BuyerPurchaser, on the one hand, or the Shareholder Representative, on the other hand. Buyer and the Representative will also instruct the Firm to, and the Firm will, (ii) make its determination based solely on the terms and provisions of this Agreement and on written submissions by Buyer and the Representative that are an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement Agreement), (i.e.iii) at the Accounting Firm’s discretion, hold a one-day conference concerning the dispute, at which conference each of Purchaser and the Shareholder Representative shall have the right to present their respective positions with respect to the dispute and have present their respective advisors, counsel and accountants, (iv) render a final resolution in writing to Purchaser and the Shareholder Representative (which final resolution shall be delivered not more than forty-five (45) days following submission of such disputed matters), which shall be final, conclusive and binding on the basis of an independent review). The Closing Balance Sheet, Parties with respect to the Closing Statement and the resulting Closing Net Working Capital, Closing Date Cash, Closing Date Indebtedness and Closing Date Company Transaction ExpensesExpenses and not subject to any further adjustment under Article IX or otherwise, in each case, as determined by the Firm in accordance with this Section 1.08(c), will be final and binding on the Parties on the date the Firm delivers its final determination in writing (v) provide a written report to Buyer Purchaser and the Shareholder Representative, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The date on which Each Party shall pay its own costs and expenses in connection with any disagreement as to the Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Date Cash, Closing Date Indebtedness and or Closing Date Company Transaction Expenses are finally determined pursuant to Section 1.08(b), are agreed upon by Buyer and the Representative pursuant to this Section 1.08(c) or are determined by the Firm in accordance with this Section 1.08(c) is referred to as the “Settlement Date.” Expenses. The fees, costs fees and expenses of the Accounting Firm will shall be allocated between BuyerPurchaser, on the one hand, and Representative (on behalf of the Stockholders and Optionholders)Equityholders, on the other hand, in the same proportion that (A) the aggregate difference between the amount of the disputed items so payment referred to in Section 1.11(e) that would have been paid to or by Equityholders based upon the Shareholder Representative’s submission to the Accounting Firm and the amount actually paid to or by Equityholders (which shall be Equityholders’ portion) bears to (B) the difference between the amount of the payment referred to in Section 1.11(e) that would have been paid to or by Purchaser based upon Purchaser’s submission to the Accounting Firm and the amount actually paid to or by Purchaser (which shall be Purchaser’s portion). For the avoidance of doubt, any dispute between the Parties concerning Closing Date Indebtedness, Company Transaction Expenses or Unpaid Taxes that is not specifically included in the objections submitted to the Accounting Firm that (regardless of when such dispute is unsuccessfully disputed by such Party (as finally determined first identified by the FirmParties) bears to the total amount of disputed items submitted. For example, if the Representative submits a Notice of Disagreement for $1,000, and if Buyer contests only $500 shall be resolved by mutual agreement of the amount claimed by the Representative, and if the Firm ultimately resolves the dispute by awarding the Representative (on behalf of the Stockholders and Optionholders) $300 of the $500 contested, then the costs and expenses of the Firm will be allocated 60% (i.e., 300/500) to Buyer and 40% (i.e., 200/500) to the Representative (on behalf of the Stockholders and Optionholders). (d) If the Estimated Merger Consideration exceeds the Final Merger Consideration (such excess, the “Excess Amount”), Buyer and the Representative will deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to pay to Buyer (Parties or its designee), within five (5) Business Days after the Settlement Date by wire transfer of immediately available funds, the Excess Amount from the Adjustment Escrow Funds. In the event that the Excess Amount is less than the Adjustment Escrow Funds (such shortfall, the “Remaining Adjustment Escrow Funds”), Buyer and the Representative will, simultaneously with delivery of the instructions in the immediately foregoing sentence, deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to pay the Remaining Adjustment Escrow Funds from the Adjustment Escrow Account to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid to the Stockholders or Optionholders in accordance with each such holder’s Pro Rata Portion; providedSection 5.2 or Article VIII, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding pursuant to Section 1.10 and subject to the Surviving Corporation’s receipt of the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. The Adjustment Escrow Funds shall be the sole and exclusive source of recovery for any Excess Amount. (e) If the Final Merger Consideration exceeds the Estimated Merger Consideration (the “Adjustment Amount”), then (i) Buyer will, within five (5) Business Days after the Settlement Date, make payment of the Adjustment Amount by wire transfer of immediately available funds to or as directed by the Representative (or its designee), and (ii) Buyer and the Representative will deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to make payment of the Adjustment Escrow Funds from the Adjustment Escrow Account, within five (5) Business Days after the Settlement Date, to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid to the Stockholders or Optionholders based on each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding pursuant to Section 1.10 and subject to the Surviving Corporation’s receipt of the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. (f) The Parties hereto agree that any payment made pursuant to this Section 1.08 shall be treated for all purposes as an adjustment to the Merger Consideration, unless otherwise required by applicable Law.applicable

Post-Closing Merger Consideration Adjustment. Following (i) Within sixty (60) days after the Closing Date, the Merger Consideration will be adjusted, if at all, as set forth below: (a) Buyer will Stockholders shall prepare and deliver to the Representative within ninety (90) days after the Closing Date (i) Acquiror an unaudited balance sheet update of the Company and its Subsidiaries as of the Adjustment Calculation Time Estimated Closing Net Debt Statement (the “Post-Closing Balance Sheet”), (ii) a statement (the “Closing Net Debt Statement”) setting forth a calculation the Net Debt of the Companies and the Designated Subsidiaries (1presented as if they were one consolidated entity as of immediately following Closing) as of 11:59 p.m (EST) on the Business Day immediately prior to the Closing Date (Net Working CapitalDebt, (2) the Closing Cash, (3) the Closing Indebtedness, (4) the Transaction Expenses, (5) Buyer’s calculation of the Final Merger Consideration derived from the foregoing, and (6) with respect as it may be adjusted pursuant to each of the foregoingthis Section 2(e), the changes “Final Closing Net Debt”). Without limiting any other rights and remedies that may be applicable, in such amounts from the corresponding amounts event of a breach of any covenant set forth in clause (y) of Section 5(a)(i) that would otherwise reduce the Estimated Final Closing Statement Net Debt as of such day, the Final Closing Net Debt shall be calculated as though such breach had not occurred. Acquiror agrees to provide the Stockholders and their representatives with reasonable access to the properties and books and records of each of Surviving Entities and the Designated Subsidiaries and the personnel responsible therefor or otherwise involved in the preparation thereof and otherwise to cooperate with the Stockholders and their representatives as they may reasonably request in connection with the preparation of the Post-Closing Net Debt Statement. (iiiii) reasonably detailed information and support for the foregoing calculations and proposed changes. The Post-Closing Balance Sheet and Closing Net Debt Statement will be prepared, and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses will be determined, in each case, in good faith, on a consolidated basis in accordance with the Accounting Principles. For the avoidance of doubt, and without in any way limiting Section 11.03(l), none of the Closing Net Working Capital, the Closing Cash, the Closing Indebtedness or the Transaction Expenses shall take into account in any manner NuPark or any of NuPark’s Subsidiaries. If Buyer fails to timely deliver the Closing Balance Sheet and the Closing Statement, in accordance with this Section 1.08(a), then the Representative may, at its election, either (i) treat the estimates delivered pursuant to Section 1.05(a) as the Closing Balance Sheet and the Closing Statement and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses, as become final and binding upon the Parties or at 5:00 p.m. (iiEST) treat such estimates as on the Closing Balance Sheet and Closing Statement delivered by Buyer pursuant to this Section 1.08(a), in which case, Seller shall be entitled to all dispute and other rights set forth in the remainder of this Section 1.08 with respect thereto. thirtieth (b) On or prior to the sixtieth (60th30th) day following Buyer’s the Stockholders’ delivery of thereof unless Acquiror gives the Closing Balance Sheet and the Closing Statement, the Representative may give Buyer a Stockholders written notice stating in reasonable detail of a good faith disagreement with any amount or computation thereof (the Representative’s objections (a “Notice of Disagreement”) to the Closing Balance Sheet and the Closing Statement. During such 60‑day period, and any period of dispute thereafter with respect prior to such Closing Balance Sheet and/or Closing Statement, Buyer will, date and will cause the Surviving Corporation and its Subsidiaries to, (i) provide the Representative and its Advisors reasonable access to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel of the Surviving Corporation and its Subsidiaries (including Surviving Corporation personnel responsible for accounting and finance and senior management) and, subject to execution of any customary work paper access letters required by them, the Surviving Corporation’s accountants and their work papers, and (ii) otherwise cooperate with and assist the Representative and its Advisors in connection with such reviewtime. Any determination set forth on the Closing Statement which is not specifically objected to in the The Notice of Disagreement will be deemed acceptable to the Representative, and will be final and binding upon all Parties upon delivery shall set forth Acquiror’s good faith determination of the Notice Final Closing Net Debt and specify, in reasonable detail, the nature of Disagreementany disagreement with the Stockholders’ determination. If the Representative does not deliver to Buyer a Notice of Disagreement within such 60‑day period, then is received by the Closing Balance SheetStockholders in a timely manner, the Closing Statement and the Post-Closing Net Working CapitalDebt Statement (as adjusted, Closing Cashas applicable, Closing Indebtedness and Transaction Expenses pursuant to this Section 2(e) to reflect final resolution of differences, if any, between the Parties) will be become final and binding upon the Parties as of the expiration earlier of such 60‑day period, and (x) the Final Merger Consideration set forth date on which the Parties resolve in writing all differences they have with respect to the matters specified in the Closing Statement will constitute Notice of Disagreement and (y) the Final Merger Consideration for date on which all purposes such differences are resolved by a determination of this Section 1.08the Accountants as described in clause (iii) below. (ciii) Following Buyer’s During the thirty (30) day period following the receipt of any the Notice of Disagreement, the Representative Stockholders and Buyer may attempt to negotiate Acquiror shall seek in good faith to resolve the disputed matters set forth therein, and all such discussions and negotiations related thereto shall (unless otherwise agreed by Buyer and the Representativematter(s) 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. In the event that the Representative and Buyer fail to agree on any of the Representative’s proposed adjustments set forth specified in the Notice of Disagreement Disagreement. If, by the expiry of that thirty-day period, the Stockholders and Acquiror have not reached an agreement on all such matters then, within ten (10) Business Days from the end of the thirty-day period, the Parties shall submit all matters that remain in dispute (the “Dispute”) to the Accountants for sole and final review and resolution as the Accountants determine to be appropriate. With respect to each disputed item or amount, the Accountants shall adopt a position that is equal to Acquiror’s proposed position, equal to the Stockholders proposed position, or between the positions proposed by Acquiror and the Stockholders. The Accountants shall establish the process of reviewing any Dispute, but shall be directed by the Parties to provide their final determination with respect to any Dispute as soon as practicable and in any event within thirty (30) days after Buyer receives following the Notice of Disagreement (or such longer period as agreed by Buyer and the Representative in writing), the Representative and Buyer agree to use their respective reasonable best efforts to cause Deloitte & Touche LLP (provided that if Deloitte & Touche LLP is unable or unwilling to serve in such capacity, the Representative and Buyer shall jointly select an alternative firm that is a nationally recognized independent accounting or valuation firm (the “Firm”), within forty‑five (45) days immediately following such first 30‑day period, to make the final written determination of all matters which remain in dispute that were included in the Notice of Disagreement. Buyer and the Representative will instruct the Firm to, and the Firm will, make a final determination of the items included in the Closing Balance Sheet and the Closing Statement (to the extent such amounts are in dispute) solely in accordance with this Agreement, acting as an expert and not as an arbitrator. Buyer and the Representative will execute a customary engagement letter and will cooperate with the Firm during the term of its engagement. Buyer and the Representative will instruct the Firm not to, and the Firm will not, assign a value to any item in dispute greater than the greatest value for such item assigned by Buyer, on the one hand, or the Representative, on the other hand, or less than the smallest value for such item assigned by Buyer, on the one hand, or the Representative, on the other hand. Buyer and the Representative will also instruct the Firm to, and the Firm will, make its determination based solely on the terms and provisions of this Agreement and on written submissions by Buyer and the Representative that are in accordance with this Agreement (i.e., not on the basis of an independent review). The Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses, in each case, as determined by the Firm in accordance with this Section 1.08(c), will be final and binding on the Parties on the date the Firm delivers its final determination in writing to Buyer and the Representative. The date on which the Closing Balance Sheet, Dispute is first submitted to the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses are finally determined pursuant to Section 1.08(b), are agreed upon by Buyer and the Representative Accountants pursuant to this Section 1.08(c2(e) for their consideration. Each Party agrees to promptly make available to each other and to the Accountants all documents, books, records and personnel under that Party’s control as the Accountants shall determine in their judgment to be necessary or are relevant to their review of the Dispute and otherwise to cooperate with the other parties and the Accountants to facilitate a prompt resolution of the Dispute; provided that nothing contained in this Section 2(e) shall require a Party to disclose any attorney-client privileged information to the extent that the disclosure thereof may result in the loss of attorney-client privilege by such Party. (iv) If Final Closing Net Debt is different from the projected Net Debt amount as of the Closing Date (determined by based on the Firm Net Debt Statement in accordance with this Section 1.08(c) is referred to as Exhibit E), then the Merger Consideration will be adjusted following the Closing (the Merger Consideration following such adjustment, the “Settlement Date.” The feesFinal Merger Consideration”) and Acquiror or the Stockholders, costs and expenses of the Firm as applicable, will be allocated between Buyer, on the one hand, and Representative (on behalf of the Stockholders and Optionholders), on pay to the other hand, in the same proportion that the aggregate amount of the disputed items so submitted excess or shortfall (after giving full credit for any adjustments made to the Firm that is unsuccessfully disputed Merger Consideration in respect of Net Debt at Closing pursuant to Section 2(d)). Any payment to the Stockholders described in this Section 2(e)(iv) shall be made by such Party (as finally determined Acquiror to the Stockholders in cash by wire transfer of immediately available funds to the account designated by the FirmStockholders promptly and in any event within five (5) bears to Business Days of the total amount date on which the Post-Closing Net Debt Statement became final (and allocated among the Stockholders in accordance with the allocation method set forth in Section 2(a)(ii)). In the event of disputed items submitted. For example, if the Representative submits a Notice of Disagreement for $1,000, and if Buyer contests only $500 any delay in payment by Acquiror of the amount claimed required by the Representative, and if the Firm ultimately resolves the dispute by awarding the Representative (on behalf of the Stockholders and Optionholdersthis Section 2(e)(iv) $300 of the $500 contested, then the costs and expenses of the Firm will be allocated 60% (i.e., 300/500) to Buyer and 40% (i.e., 200/500) to the Representative (on behalf of the Stockholders and Optionholders). (d) If the Estimated Merger Consideration exceeds the Final Merger Consideration (such excess, the “Excess Amount”), Buyer and the Representative will deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to pay to Buyer (or its designee), within beyond five (5) Business Days after the Settlement Date by wire transfer of immediately available fundsPost-Closing Net Debt Statement became final, the Excess Amount Stockholders also will be entitled to receive interest on the unpaid amount from the Adjustment Escrow Fundssuch fifth Business Day at 10% per annum, compounding monthly, until all amounts owing hereunder have been paid in full. In the event that the Excess Amount is less than the Adjustment Escrow Funds (such shortfall, the “Remaining Adjustment Escrow Funds”), Buyer and the Representative will, simultaneously with delivery of the instructions Any payment to Acquiror as described in the immediately foregoing sentencefirst sentence of this Section 2(e)(iv) shall be effected by Acquiror canceling the applicable number of shares of its common stock (determined based on the Value Per Share, deliver joint written instructions rounded to the Escrow Agent to cause the Escrow Agent to pay the Remaining Adjustment Escrow Funds from the Adjustment Escrow Account to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid nearest whole number of shares) that it delivered to the Stockholders or Optionholders in accordance with each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding pursuant to Section 1.10 and subject to the Surviving Corporation’s receipt of the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. The Adjustment Escrow Funds shall be the sole and exclusive source of recovery for any Excess Amountat Closing. (e) If the Final Merger Consideration exceeds the Estimated Merger Consideration (the “Adjustment Amount”), then (i) Buyer will, within five (5) Business Days after the Settlement Date, make payment of the Adjustment Amount by wire transfer of immediately available funds to or as directed by the Representative (or its designee), and (ii) Buyer and the Representative will deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to make payment of the Adjustment Escrow Funds from the Adjustment Escrow Account, within five (5) Business Days after the Settlement Date, to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid to the Stockholders or Optionholders based on each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding pursuant to Section 1.10 and subject to the Surviving Corporation’s receipt of the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. (f) The Parties hereto agree that any payment made pursuant to this Section 1.08 shall be treated for all purposes as an adjustment to the Merger Consideration, unless otherwise required by applicable Law.

Post-Closing Merger Consideration Adjustment. Following the Closing Date, the Merger Consideration will be adjusted, if at all, as set forth below: (a) Buyer will prepare and deliver to the Representative within Within ninety (90) days after the Closing Date Date, Buyer shall cause to be prepared and delivered to Shareholders’ Representative a certificate signed by a duly authorized officer of Buyer attaching (i) an unaudited the consolidated balance sheet of the Company and its Subsidiaries the related statements of income and Shareholders’ capital and statement of cash flows as of the Adjustment Calculation Time Closing Date prepared in accordance with GAAP (without giving effect to the “Closing Balance Sheet”transactions contemplated herein), and (ii) a statement (the “Closing Statement”) setting forth a including Buyer’s calculation of (1A) the Closing Net Working CapitalCapital (including each component item thereof calculated in accordance with the manner of calculation reflected in Schedule 1.05 attached hereto), (2) the Closing Cash, (3B) the Closing Indebtedness, (4C) the Transaction ExpensesExpenses (D) the resulting Closing Net Working Capital Surplus or Closing Net Working Capital Shortfall (as applicable) and the Post-Closing Adjustment (as defined herein), (5E) Cash and (F) Buyer’s calculation of the Final Merger Consideration derived from the foregoing, and (6) with respect to each of the foregoing, the changes in such amounts from the corresponding amounts set forth in the Estimated Closing Statement and (iii) reasonably detailed information and support for the foregoing calculations and proposed changes. The Post-Closing Balance Sheet and Closing Statement will Adjustment shall be prepared, and an amount equal to the Closing Net Working Capital, Capital Surplus (if any) minus the Estimated Net Working Capital Surplus (if any) plus the Estimated Net Working Capital Shortfall (if any) minus the Closing Cash, Net Working Capital Shortfall (if any) plus the Estimated Closing Indebtedness and minus the Closing Indebtedness plus the Estimated Transaction Expenses will be determined, in each case, in good faith, on a consolidated basis in accordance with minus the Accounting Principles. For Closing Transaction Expenses plus the avoidance of doubt, and without in any way limiting Section 11.03(lEstimated Cash minus the Cash (the “Post-Closing Adjustment”), none provided that, the Post-Closing Adjustment shall in no way be affected, modified or adjusted by Buyer’s Independent Investigation (as defined herein) conducted prior to the Closing, including but not limited to, inventory reserves. (b) Shareholders’ Representative shall have thirty (30) days following Shareholders’ Representative’s receipt of the Closing Statement to review and analyze Buyer’s calculations set forth therein. If Shareholders’ Representative concurs with such calculation or shall not object thereto in a writing delivered to Buyer within the aforesaid thirty (30) day period, Bxxxx’s calculation of the Closing Net Working CapitalCapital shall become final, binding and conclusive on the Closing Cashparties hereto and shall not be subject to further review, the Closing Indebtedness challenge or the Transaction Expenses shall take into account in any manner NuPark or any of NuPark’s Subsidiariesadjustment. If Buyer fails to timely deliver the Closing Balance Sheet and the Closing Statement, in accordance with this Section 1.08(a), then the Representative may, at its election, either (i) treat the estimates delivered pursuant to Section 1.05(a) as the Closing Balance Sheet and the Closing Statement and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses, as final and binding upon the Parties or (ii) treat such estimates as the Closing Balance Sheet and Closing Statement delivered by Buyer pursuant to this Section 1.08(a), in which case, Seller shall be entitled to all dispute and other rights set forth in the remainder of this Section 1.08 with respect thereto. (b) On or prior to the sixtieth (60th) day following Buyer’s delivery of the Closing Balance Sheet and the Closing Statement, the Representative may give Buyer a written notice stating in reasonable detail the Representative’s objections (a “Notice of Disagreement”) to the Closing Balance Sheet and the Closing Statement. During such 60‑day period, and any period of dispute thereafter with respect to such Closing Balance Sheet and/or Closing Statement, Buyer will, and will cause the Surviving Corporation and its Subsidiaries to, (i) provide the Representative and its Advisors reasonable access to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel of the Surviving Corporation and its Subsidiaries (including Surviving Corporation personnel responsible for accounting and finance and senior management) and, subject to execution of any customary work paper access letters required by them, the Surviving Corporation’s accountants and their work papers, and (ii) otherwise cooperate with and assist the Representative and its Advisors in connection with such review. Any determination set forth on the Closing Statement which is not specifically objected to in the Notice of Disagreement will be deemed acceptable to the Representative, and will be final and binding upon all Parties upon delivery of the Notice of Disagreement. If the Shareholders’ Representative does not deliver to agree with Bxxxx’s calculation and notifies Buyer a Notice of Disagreement within such 60‑day period, then the Closing Balance Sheet, the Closing Statement and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses will be final and binding upon the Parties as of the expiration of such 60‑day period, and objection in writing within the Final Merger Consideration set forth in aforesaid thirty (30) day period with a statement containing reasonable detail as to the Closing Statement will constitute the Final Merger Consideration basis for all purposes objection(s) (the “Statement of this Section 1.08. (c) Following Buyer’s receipt of any Notice of DisagreementObjections”), the Buyer and Shareholders’ Representative and Buyer may attempt to negotiate shall work in good faith to resolve the disputed matters set forth therein, and all such discussions and negotiations related thereto shall (unless otherwise agreed by Buyer and the Representative) be governed by Rule 408 for a period of the Federal Rules of Evidence (as in effect as of the date of this Agreement) and any applicable similar state rule. In the event that the Representative and Buyer fail to agree on any of the Representative’s proposed adjustments set forth in the Notice of Disagreement within thirty (30) days after Buyer receives the Notice of Disagreement thereafter (or such longer period as agreed by Buyer and they may mutually agree) (the Representative in writing), the “Agreement Period”) to agree upon such calculation. (c) If Shareholders’ Representative and Buyer agree fail to use their respective reasonable best efforts reach an agreement with respect to cause Deloitte & Touche LLP (provided that if Deloitte & Touche LLP is unable or unwilling to serve all of the matters set forth in such capacitythe Statement of Objections before expiration of the Agreement Period, the Representative and Buyer shall jointly select an alternative firm that is a nationally recognized independent accounting or valuation firm (the “Firm”), within forty‑five (45) days immediately following such first 30‑day period, to make the final written determination of all matters which remain then any amounts remaining in dispute that were included in (“Disputed Amounts”) shall be submitted for resolution to a Neutral Auditor mutually appointed by Bxxxx and Shareholders’ Representative who, acting as experts and not arbitrators, shall resolve the Notice of Disagreement. Buyer Disputed Amounts only and make any adjustments to the Representative will instruct Post-Closing Adjustment, as the Firm tocase may be, and the Firm will, make a final determination Closing Statement. The parties hereto agree that all adjustments shall be made without regard to materiality. The Neutral Auditor shall only decide the specific items under dispute by the parties and their decision for each Disputed Amount must be within the range of the items included in the Closing Balance Sheet and the Closing Statement (values assigned to the extent each such amounts are in dispute) solely in accordance with this Agreement, acting as an expert and not as an arbitrator. Buyer and the Representative will execute a customary engagement letter and will cooperate with the Firm during the term of its engagement. Buyer and the Representative will instruct the Firm not to, and the Firm will not, assign a value to any item in dispute greater than the greatest value for such item assigned by Buyer, on the one hand, or the Representative, on the other hand, or less than the smallest value for such item assigned by Buyer, on the one hand, or the Representative, on the other hand. Buyer and the Representative will also instruct the Firm to, and the Firm will, make its determination based solely on the terms and provisions of this Agreement and on written submissions by Buyer and the Representative that are in accordance with this Agreement (i.e., not on the basis of an independent review). The Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working CapitalStatement of Objections, Closing Cashrespectively. If Buyer and Shareholders’ Representative are unable to agree on the selection of such Neutral Auditor within ten (10) days after the expiration of the Agreement Period, Closing Indebtedness then within twenty (20) days after the expiration of the Agreement Period, Buyer and Transaction ExpensesShareholders’ Representative shall each select an independent certified public accounting firm and such two (2) firms shall, in each casewithin twenty-five (25) days after the expiration of the Agreement Period, as determined select the Neutral Auditor. Such calculation by the Firm Neutral Auditor shall be final, binding and conclusive on the parties hereto and shall not be subject to further review, challenge or adjustment. Each party hereto shall pay its own costs and expenses incurred in accordance connection with this Section 1.08(c); provided, will be final however, that Shareholders’ Representative and binding on Buyer shall each pay one-half (1/2) of the Parties on the date the Firm delivers its final determination in writing to Buyer and the Representative. The date on which the Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses are finally determined pursuant to Section 1.08(b), are agreed upon by Buyer and the Representative pursuant to this Section 1.08(c) or are determined by the Firm in accordance with this Section 1.08(c) is referred to as the “Settlement Date.” The fees, costs and expenses of the Firm will be allocated between Buyer, on the one hand, and Representative (on behalf of the Stockholders and Optionholders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Firm that is unsuccessfully disputed by such Party (as finally determined by the Firm) bears to the total amount of disputed items submitted. For example, if the Representative submits a Notice of Disagreement for $1,000, and if Buyer contests only $500 of the amount claimed by the Representative, and if the Firm ultimately resolves the dispute by awarding the Representative (on behalf of the Stockholders and Optionholders) $300 of the $500 contested, then the costs and expenses of the Firm will be allocated 60% (i.e., 300/500) to Buyer and 40% (i.e., 200/500) to the Representative (on behalf of the Stockholders and Optionholders)Neutral Auditor. (d) If In the Estimated Merger Consideration exceeds event the Final Merger Consideration Post-Closing Adjustment is a negative number, then within five (such excess, 5) Business Days of the “Excess Amount”Determination Date (as defined below), Buyer and the Shareholders’ Representative will deliver shall submit joint written instructions to the Escrow Agent to cause the Escrow Agent to pay to Buyer (or its designee), within five (5) Business Days after the Settlement Date by wire transfer of immediately available funds, the Excess Amount release from the Closing Adjustment Escrow Funds. In Account (i) to Buyer, an amount by which the event that the Excess Amount Post-Closing Adjustment is less than $0 (up to the amount then remaining in the Closing Adjustment Escrow Funds Account) and (such shortfall, the “Remaining Adjustment Escrow Funds”), Buyer and the Representative will, simultaneously with delivery of the instructions in the immediately foregoing sentence, deliver joint written instructions ii) to the Escrow Agent to cause the Escrow Agent to pay the Remaining Adjustment Escrow Funds from the Adjustment Escrow Account to or Key Shareholders as directed by the Representative Shareholders’ Representative, any amounts then remaining in the Closing Adjustment Escrow Account (or its designeeafter reduction pursuant to the foregoing clause (i), with all such amounts, subject to Section 10.19(b), . If the amount to be paid to the Stockholders or Optionholders in accordance with each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding Buyer pursuant to Section 1.10 and subject to the Surviving Corporation’s receipt of the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. The Adjustment Escrow Funds shall be the sole and exclusive source of recovery for any Excess Amount. (e) If the Final Merger Consideration exceeds the Estimated Merger Consideration (the “Adjustment Amount”), then clause (i) Buyer will, within five (5) Business Days after the Settlement Date, make payment of the previous sentence exceeds the Closing Adjustment Escrow Amount, the Key Shareholders shall pay Buyer such amount in excess of the Closing Adjustment Escrow Amount by wire transfer of immediately available funds to or such account as is directed by Buyer within five (5) Business Days of the Representative (or its designee)Determination Date, and (ii) or, at Buyer’s option, Buyer and the Shareholders’ Representative will deliver shall submit joint written instructions to the Escrow Agent to cause release from the Retention Escrow Agent Account to make payment Buyer such amount in excess of the Closing Adjustment Escrow Funds from Amount. In the event the Post-Closing Adjustment Escrow Accountis a positive number, then within five (5) Business Days after of the Settlement Determination Date, to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid to the Stockholders or Optionholders based on each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding pursuant to Section 1.10 Buyer and subject to the Surviving Corporation’s receipt of the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. (f) The Parties hereto agree that any payment made pursuant to this Section 1.08 shall be treated for all purposes as an adjustment to the Merger Consideration, unless otherwise required by applicable Law.Shareholders’

Post-Closing Merger Consideration Adjustment. Following (a) Within sixty (60) calendar days after the Closing Date, the Merger Consideration will Buyer shall cause to be adjusted, if at all, as set forth below: (a) Buyer will prepare prepared and deliver delivered to the Stockholders’ Representative within ninety (90) days after the Closing Date (i) an unaudited balance sheet of the Company and its Subsidiaries as of the Adjustment Calculation Time (the “Closing Balance Sheet”), (ii) a statement (the “Closing Statement”) setting forth a calculation of (1) the Closing Net Working Capital, (2) the Closing Cash, (3) the Closing Indebtedness, (4) the Transaction Expenses, (5) Buyer’s calculation of the Final Merger Consideration derived from the foregoing, and (6) with respect to each of the foregoing, the changes in such amounts from the corresponding amounts set forth in the Estimated Closing Statement and (iii) reasonably detailed information and support for the foregoing calculations and proposed changes. The Closing Balance Sheet and Closing Statement will be prepared, and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses will be determined, in each case, in good faith, on a consolidated basis in accordance with the Accounting Principles. For the avoidance of doubt, and without in any way limiting Section 11.03(l), none of the Closing Net Working Capital, the Closing CashNet Funded Indebtedness, the Closing Indebtedness or Transaction Related Expenses (to the Transaction Expenses shall take into account in any manner NuPark extent not paid by the Company or any of NuPark’s Subsidiaries. If Buyer fails its Affiliates prior to timely deliver the Closing Balance Sheet and the Closing Statement, in accordance with this Section 1.08(a), then the Representative may, at its election, either Closing) (i) treat the estimates delivered pursuant to Section 1.05(a) as the Closing Balance Sheet and the Closing Statement and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and except for any such Transaction Expenses, as final and binding upon the Parties or (ii) treat such estimates as the Closing Balance Sheet and Closing Statement delivered Related Expenses reimbursable by Buyer pursuant to this Agreement (including Section 1.08(a5.2 and Section 12.7)), in which casethe Excess Load-In Charge, Seller and the components thereof. The Closing Statement and the Net Working Capital, the Net Funded Indebtedness, Transaction Related Expenses (to the extent not paid by the Company or any of its Affiliates prior to the Closing) (except for any such Transaction Related Expenses reimbursable by Buyer pursuant to this Agreement (including Section 5.2 and Section 12.7)) and Excess Load-In Charge set forth therein shall be entitled to all dispute prepared and other rights set forth calculated in good faith, and in the remainder of this Section 1.08 manner and on a basis consistent with respect theretothe applicable definitions thereof and shall be in the same form and include the same line items as the Estimated Net Working Capital calculation, the Estimated Net Funded Indebtedness calculation, the Estimated Transaction Related Expenses calculation and the Estimated Excess Load-In Charge calculation. If the Closing Statement is not so timely delivered, the Estimated Net Working Capital, the Estimated Net Funded Indebtedness, Estimated Transaction Related Expenses and Estimated Excess Load-In Charge will be deemed Final Net Working Capital, Final Net Funded Indebtedness, Final Transaction Related Expenses, and Final Excess Load-In Charge respectively, absent manifest error or fraud. (b) On After receipt of the Closing Statement, the Stockholders’ Representative will have sixty (60) calendar days to review the Closing Statement. Unless the Stockholders’ Representative delivers written notice (which notice shall include the items and amounts in dispute and supporting documentation related thereto; such notice, a “Seller Dispute Notice”) to Buyer setting forth in reasonable detail the specific items disputed by the Stockholders’ Representative in good faith with respect thereto, and the specific basis for each such objection, on or prior to the sixtieth (60th) calendar day following Buyerafter the Stockholders’ Representative’s delivery receipt of the Closing Balance Sheet and the Closing Statement, the Stockholders’ Representative may give Buyer a written notice stating in reasonable detail the Representative’s objections (a “Notice of Disagreement”) to the Closing Balance Sheet and the Closing Statement. During such 60‑day period, and any period of dispute thereafter with respect to such Closing Balance Sheet and/or Closing Statement, Buyer will, and will cause the Surviving Corporation and its Subsidiaries to, (i) provide the Representative and its Advisors reasonable access to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel of the Surviving Corporation and its Subsidiaries (including Surviving Corporation personnel responsible for accounting and finance and senior management) and, subject to execution of any customary work paper access letters required by them, the Surviving Corporation’s accountants and their work papers, and (ii) otherwise cooperate with and assist the Representative and its Advisors in connection with such review. Any determination set forth on the Closing Statement which is not specifically objected to in the Notice of Disagreement will be deemed acceptable to the Representative, have accepted and will be final and binding upon all Parties upon delivery of the Notice of Disagreement. If the Representative does not deliver agreed to Buyer a Notice of Disagreement within such 60‑day period, then the Closing Balance Sheet, the Closing Statement and such statement (and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses calculations contained therein) will be final final, binding and binding upon conclusive, absent manifest error or fraud. If the Parties as of the expiration of Stockholders’ Representative delivers to Buyer a Seller Dispute Notice within such 60‑day sixty (60) calendar day period, and the Final Merger Consideration set forth in the Closing Statement will constitute the Final Merger Consideration for all purposes of this Section 1.08. (c) Following Buyer’s receipt of any Notice of Disagreement, the Representative and Buyer may attempt to negotiate in good faith to resolve the disputed matters set forth therein, and all such discussions and negotiations related thereto shall (unless otherwise agreed by Buyer and the Representative) be governed by Rule 408 of Stockholders’ Representative shall, during the Federal Rules of Evidence (as in effect as of the date of this Agreement) and any applicable similar state rule. In the event that the Representative and Buyer fail to agree on any of the Representative’s proposed adjustments set forth in the Notice of Disagreement within thirty (30) calendar days after following delivery of such Seller Dispute Notice by the Stockholders’ Representative to Buyer receives the Notice of Disagreement (or such longer period as agreed they may mutually agree in writing) (the “Resolution Period”), attempt in good faith to resolve their differences with respect to the disputed items (or calculations) in such Seller Dispute Notice (the “Disputed Items”), and all other items (and all calculations relating thereto) will be final, binding and conclusive, absent manifest error or fraud. Any resolution by Buyer and the Stockholders’ Representative during the Resolution Period as to any Disputed Item shall be set forth in writing)writing and will be final, the Representative binding and Buyer agree to use their respective reasonable best efforts to cause Deloitte & Touche LLP conclusive, absent manifest error or fraud. (provided that if Deloitte & Touche LLP is unable or unwilling to serve in such capacity, the Representative and Buyer shall jointly select an alternative firm that is a nationally recognized independent accounting or valuation firm (the “Firm”), within forty‑five (45c) days immediately following such first 30‑day period, to make the final written determination of all matters which remain in dispute that were included in the Notice of Disagreement. If Buyer and the Stockholders’ Representative do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute will instruct be submitted to the Firm toNeutral Arbitrator pursuant to an engagement letter reasonably acceptable to the Stockholders’ Representative and the Buyer. The Neutral Arbitrator shall act as an arbitrator to determine only those Disputed Items remaining in dispute, consistent with this Section 2.14, and shall request a statement from Buyer and the Firm will, make a final determination Stockholders’ Representative regarding such Disputed Items. The scope of the disputes to be arbitrated by the Neutral Arbitrator is limited to those items included or calculations specifically in dispute between Buyer and the Closing Balance Sheet Stockholders’ Representative; and the Neutral Arbitrator is not to make any other determination, including not making any determination as to whether the Closing Statement (to the extent such amounts are in dispute) solely or Net Working Capital, Net Funded Indebtedness, Transaction Related Expenses or Excess Load-In Charge was prepared in accordance with GAAP or whether the agreed upon dollar amount of the Target Net Working Capital is correct or appropriate or in accordance with GAAP or the definition of Net Working Capital. In resolving each Disputed Item, the Neutral Arbitrator shall be bound by the principles set forth in this Agreement, acting as an expert Section 2.14 and may not as an arbitrator. Buyer and the Representative will execute a customary engagement letter and will cooperate with the Firm during the term of its engagement. Buyer and the Representative will instruct the Firm not to, and the Firm will not, assign a value to any item in dispute Disputed Item greater than the greatest value for such item assigned Disputed Item claimed by Buyer, on the one hand, or the Representative, on the other hand, any party or less than the smallest lowest value for such item assigned Disputed Item claimed by Buyer, on any party. The parties further agree that the one hand, or adjustment contemplated by this Section 2.14 is intended to show the Representative, on change between the other hand. Buyer Estimated Net Working Capital and the Representative will also instruct the Firm to, and the Firm will, make its determination based solely on the terms and provisions of this Agreement and on written submissions by Buyer and the Representative that are in accordance with this Agreement (i.e., not on the basis of an independent review). The Closing Balance Sheet, the Closing Statement and the resulting Closing Final Net Working Capital, Closing Cash, Closing the change between the Estimated Net Funded Indebtedness and the Final Net Funded Indebtedness, the change between Estimated Transaction Related Expenses and Final Transaction Related Expenses, and the change between Estimated Excess Load-In Charge and Final Excess Load-In Charge, and that such changes can only be measured if each calculation is done in each casea manner consistent with the applicable definitions thereof. All fees and expenses relating to the work, as determined if any, to be performed by the Firm in accordance with this Section 1.08(c), will be final and binding on the Parties on the date the Firm delivers its final determination in writing to Buyer and the Representative. The date on which the Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses are finally determined pursuant to Section 1.08(b), are agreed upon by Buyer and the Representative pursuant to this Section 1.08(c) or are determined by the Firm in accordance with this Section 1.08(c) is referred to as the “Settlement Date.” The fees, costs and expenses of the Firm Neutral Arbitrator will be allocated between Buyer, on Buyer and the one hand, and Stockholders’ Representative (on behalf which, in the case of the Stockholders and Optionholders)Stockholders’ Representative, on shall be payable by the other handStockholders’ Representative solely out of the Reserve Amount, or by setoff against one or more Contingent Payments) in the same proportion that the aggregate amount of the disputed items Disputed Items so submitted to the Firm Neutral Arbitrator that is unsuccessfully disputed by each such Party party (as finally determined by the FirmNeutral Arbitrator) bears to the total amount of disputed items such Disputed Items so submitted. For example, if the Representative submits a Notice of Disagreement for $1,000, and if Buyer contests only $500 of the amount claimed by the Representative, and if the Firm ultimately resolves the dispute by awarding the Representative (on behalf of the Stockholders and Optionholders) $300 of the $500 contested, then the costs and expenses of the Firm The Neutral Arbitrator will be allocated 60% (i.e., 300/500) deliver to Buyer and 40% the Stockholders’ Representative a written determination (i.e., 200/500) such determination to include a work sheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Neutral Arbitrator by the Stockholders’ Representative (on behalf and Buyer, and a written explanation in reasonable detail of each such determination) of the Stockholders Disputed Items submitted to the Neutral Arbitrator within thirty (30) calendar days, or such longer period as may be required by the Neutral Arbitrator, of receipt of such Disputed Items, which determination will be final, binding and Optionholdersconclusive, absent manifest error or fraud. The final, binding and conclusive Closing Statement based either upon agreement by the parties, or deemed agreement by Buyer and the Stockholders’ Representative in accordance with this Section 2.14, or the written determination delivered by the Neutral Arbitrator in accordance with this Section 2.14(c) will be the “Conclusive Closing Statement.” Neither any Stockholder, holder of Company Stock Options, holder of Company RSUs nor the Stockholders’ Representative shall have any liability with respect to Funded Indebtedness, Closing Date Funded Indebtedness, Transaction Related Expenses, or current assets or current liabilities (including as to accounts receivable and the collectability thereof) or any other component of Net Working Capital except as determined in this Section 2.14, except that this sentence shall not limit a claim for a breach of a representation or warranty pursuant to Section 11.2(a) (but for the avoidance of doubt any liability under Section 2.14 or Damages under Section 11.2(a) may not be recovered more than once in respect of the same liability or Damages, as the case may be). All negotiations pursuant to this Section 2.14(c) shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable other laws including state rules of evidence, and all negotiations, submissions to the Neutral Arbitrator, and dispute resolution proceedings under this Section 2.14(c) shall be treated as such. The Neutral Arbitrator shall be bound by a mutually agreeable confidentiality confidential information agreement. The procedures of this Section 2.14(c) are exclusive and, except as set forth below, the determination of the Neutral Arbitrator shall be final and binding on the parties. The decision rendered pursuant to this Section 2.14(c) may be filed as a judgment in any court of competent jurisdiction. Either party may seek specific enforcement or take other necessary legal action to enforce any decision under this Section 2.14(c). The other party’s only defense to such a request for specific enforcement or other legal action shall be manifest error or fraud by or upon the Neutral Arbitrator. Absent such manifest error or fraud, such other party shall reimburse the party seeking enforcement for its expenses related to such enforcement. (d) If Subject to Section 2.14(e): (i) if the Estimated Merger Consideration exceeds Aggregate Common Equity Cash Amount is greater than the Final Merger Consideration (such excessPayment Amount, then the “Excess Amount”), Stockholders’ Representative and Buyer and the Representative will deliver joint written instructions to the Escrow Agent to cause shall instruct the Escrow Agent to pay to Buyer (or its designee)the Surviving Corporation, within five (5) Business Days after solely out of the Settlement Date by wire transfer of immediately available funds, the Excess Amount from funds in the Adjustment Escrow Funds. In Account, an amount in cash equal to the event that amount by which the Excess Aggregate Common Equity Cash Amount is greater than the Final Payment Amount; provided that, if such amount exceeds the funds in the Adjustment Escrow Account by greater than $500,000, the Surviving Corporation shall be entitled to recover such amount either from the Indemnity Escrow Account, or by way of offset against any Contingent Payments pursuant to Section 2.10(c); and (ii) if the Aggregate Common Equity Cash Amount is less than the Adjustment Escrow Funds (such shortfall, the “Remaining Adjustment Escrow Funds”)Final Payment Amount, Buyer and the Representative will, simultaneously with delivery of the instructions in the immediately foregoing sentence, deliver joint written instructions shall pay to the Escrow Paying Agent to cause the Escrow Agent to pay the Remaining Adjustment Escrow Funds from the Adjustment Escrow Account to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid for further pro rata distribution to the Stockholders or Optionholders Fully Diluted Common Holders, as set forth in accordance with each such holder’s Pro Rata Portion; provided, that the portion of any such amounts payable to Optionholders may, if so directed by the Representative, be remitted Section 2.8) an amount in cash equal to the Surviving Corporation for payment to such Persons through amount by which the Surviving Corporation’s payroll procedures after applicable Tax withholding pursuant to Section 1.10 and subject to the Surviving Corporation’s receipt of the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. The Adjustment Escrow Funds shall be the sole and exclusive source of recovery for any Excess Amount. (e) If Aggregate Common Equity Cash Amount is less than the Final Merger Consideration exceeds the Estimated Merger Consideration (the “Adjustment Amount”), then (i) Buyer will, within five (5) Business Days after the Settlement Date, make payment of the Adjustment Payment Amount by wire transfer of immediately available funds to or as directed by (the Representative (or its designee), and (ii) Buyer and the Representative will deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to make payment of the Adjustment Escrow Funds from the Adjustment Escrow Account, within five (5) Business Days after the Settlement Date, to or as directed by the Representative (or its designee), with all such amounts, subject to Section 10.19(b), to be paid to the Stockholders or Optionholders based on each such holder’s Pro Rata Portion; provided, that the portion of any such amounts amount payable to Optionholders may, if so directed by the Representative, be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures after applicable Tax withholding Buyer pursuant to Section 1.10 2.14(d)(i) and subject the amount payable to the Surviving Corporation’s receipt of Paying Agent (for further pro rata distribution to the applicable duly executed Option Cancellation Agreement, and the Surviving Corporation shall make such payments as directed by the Representative promptly following receipt thereof. (fFully Diluted Common Holders) The Parties hereto agree that any payment made pursuant to this Section 1.08 2.14(d)(ii) are referred to herein as the “Merger Consideration Adjustment Amount”); provided, however, Buyer shall cause any such payment that is a Compensatory Payment to be treated for all purposes as an adjustment promptly paid from the relevant accounts of the Company (or its Subsidiary) through the payroll system of the Company (or its Subsidiary) to the Merger Considerationapplicable Person to whom such payments are to be made, unless otherwise required by subject to any applicable Law.deductions or withholding Taxes applicable to such payments. For purposes of this Section 2.14: