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

Post-Closing Merger Consideration Adjustment. Following the Closing Date, the Estimated Merger Consideration will be adjusted 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 (for the avoidance of doubt, taking into account any actions taken pursuant to Section 5.01(d)) (the “Closing Balance Sheet”) and (ii) a statement (the “Closing Statement”) setting forth a calculation of (1) Closing Net Working Capital, (2) Closing Cash, (3) 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 on the Estimated Closing Statement. The Closing Balance Sheet and Closing Statement will be prepared, and Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses will be determined, in each case, in good faith, in accordance with the Accounting Principles. The Closing Balance Sheet and Closing Statement (i) will not include any changes in assets or liabilities as a result of purchase or other accounting adjustments or other changes arising from or resulting as a consequence of the Transactions, and (ii) will be based on facts and circumstances as they exist as of the Adjustment Calculation Time and will exclude the effect of any act, decision or event occurring on or after the Closing. The parties agree that the purpose of preparing the Closing Balance Sheet and the Closing Statement and calculating Final Merger Consideration is solely to (x) accurately measure the Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses and (y) measure the difference in Closing Net Working Capital from Target Net Working Capital, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, reserves classifications or estimation methodologies for the purpose of calculating Final Merger Consideration than were used in the calculation of Estimated Merger Consideration. (b) On or prior to the thirtieth (30th) day following Buyer’s delivery of the Closing Balance Sheet and the Closing Statement, the Representative will 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, if any. During such 30-day period, and any period of dispute thereafter with respect to such Closing Balance Sheet and/or Closing Statement, subject to reasonable nondisclosure obligations, Buyer will, and will cause the Company and its Subsidiaries to, (i) provide the Representative and its Advisors reasonable access during reasonable hours to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel of the Company and its Subsidiaries (including Company personnel responsible for accounting and finance and senior management) and, subject to execution of any customary work paper access letters required by them, the Company’s Advisors 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 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 30-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, binding and conclusive upon the parties as of the expiration of such 30-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 1.07. (c) Following Buyer’s receipt of any Notice of Disagreement, the Representative and Buyer will discuss in good faith to resolve the disputed matters set forth therein, and upon any such resolution, the Closing Balance Sheet and Closing Statement will be updated and prepared in accordance with the agreement of Buyer and the Representative. Any written resolution executed by Buyer and the Representative during such thirty (30) day period following Buyer’s receipt of a Notice of Disagreement as to any item identified in the Notice of Disagreement will be final, binding and conclusive on the parties. (d) 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, the Representative and Buyer agree to jointly select a nationally recognized accounting firm, and use their reasonable best efforts to cause such accounting firm, within 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. If, Buyer and the Representative cannot agree on an accounting firm within fifteen (15) days after such first 30-day period, each of Buyer and the Representative will promptly select a nationally recognized accounting firm and such two accounting firms will designate a third nationally recognized accounting firm that neither presently is, nor in the past three years has been, engaged by either party. The accounting firm so agreed to by Buyer and the Representative or the third accounting firm so selected by the two accounting firms in accordance with the immediately preceding sentence is hereinafter referred to as the “Firm”. Buyer and the Representative will mutually 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. 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 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 1.07(c), will be final, binding and conclusive on the parties on the date the Firm delivers its final determination in writing to Buyer and the Representative, and, subject to Section 11.15, Section 11.16 and Section 11.17, each of the parties hereto will be entitled to enforce such determination in a court of competent jurisdiction. The Firm will provide a written report to Buyer and the Representative, if requested by either of them, which sets forth in reasonable detail the basis for the Firm’s final determination. In connection with the resolution of any dispute, the Firm will have reasonable access to all documents, records, work papers, facilities and personnel of the Company and its Subsidiaries necessary to make its determination. Each party will be afforded the opportunity to present to the Firm any material such party deems relevant to the determination and will have a continuing opportunity to discuss the matter and its position with the Firm, but no such presentation of materials or communication will be on an ex parte basis and each party will be afforded access to copies of all materials presented by each other party. The fees, costs and expenses of the Firm will be allocated between Buyer, on the one hand, and Representative, 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 $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. (e) The Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses (as revised to reflect the resolution of any disputed matters in accordance with this Section 1.07) will be deemed to be final, binding and conclusive, upon the earliest of (i) the failure of the Representative to provide a Notice of Disagreement within thirty (30) days after the Representative receives the Closing Balance Sheet and the Closing Statement pursuant to Section 1.07(b), (ii) the resolution in writing of all disputes set forth in the Notice of Disagreement pursuant to Section 1.07(c) by Buyer and the Representative, or (iii) the resolution of all disputes set forth in the Notice of Disagreement by the Firm pursuant to Section 1.07(d). (f) Within two (2) Business Days following the final determination of the Closing Balance Sheet and the Closing Statement in accordance with Section 1.07(e) (such date, the “Settlement Date”): (i) 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), by wire transfer of immediately available funds, the Excess Amount from the Adjustment Escrow Funds. In the event that at such time 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 the Representative (or its designee). The Adjustment Escrow Account is Buyer’s and Merger Sub’s sole and exclusive source of recovery for any Excess Amount owing to Buyer, Merger Sub or, following the Closing, the Surviving Corporation hereunder. (ii) If the Final Merger Consideration exceeds the Estimated Merger Consideration (such excess, the “Adjustment Amount”), then (i) Buyer will make payment of the Adjustment Amount by wire transfer of immediately available funds, to 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 to the Representative (or its designee). Notwithstanding the foregoing, in no event shall the Adjustment Amount exceed an amount equal to $10,000,000. (g) When the Final Merger Consideration is finally determined pursuant to Section 1.07(e), the Representative will in good faith compute or re-compute, as the case may be, (i) the number of Vested Options, (ii) the Aggregate Fully-Diluted Common Shares, (iii) the Aggregate Option Exercise Price, (iv) the Final Adjusted Merger Consideration, (v) the Final Common Stock Merger Consideration, (vi) the Final Common Stock Per Share Merger Consideration, (vii) the Final Option Per Share Merger Consideration, and (viii) the appropriate amount payable to each Stockholder and Optionholder based on the foregoing from the Remaining Adjustment Escrow Funds, the Adjustment Amount and the Representative Holdback Amount, taking into account amounts previously received by such Stockholders and Optionholders as Closing Stock Payments or Closing Option Payments, in each case, in accordance with this Agreement and the terms of the Option Plan (and, for purposes of this Section 1.07(g), making such calculation as though all Closing Option Payments had been made without regard to reductions under any Retention Arrangement). Promptly thereafter, the Representative will notify the Escrow Agent and the Paying Agent, as applicable, of such calculations and the amount that should be distributed by them to each Stockholder and to the Surviving Corporation on behalf of each Optionholder based upon the calculations and re-calculations contemplated by the immediately preceding sentence. For the avoidance of doubt, each Stockholder and Optionholder will receive the difference between (x) the amounts payable to such Stockholder or Optionholder based upon the calculations and re-calculations contemplated by this Section 1.07(g) and (y) the Closing Stock Payment or Closing Option Payment received by such Stockholder or Optionholder, as applicable (for purposes of this Section 1.07(g), making such calculation as though all Closing Option Payments had been made without regard to reductions under any Retention Arrangement). The Representative, the Escrow Agent, and the Paying Agent, as applicable, will distribute such amounts, as applicable, in accordance with the written instructions so received from the Representative. If, at the time of the calculation of Final Adjusted Merger Consideration, the Representative determines to retain funds in the Representative Holdback Amount under Section 11.18(b), and at any time and from time to time thereafter determines a portion of such funds should be distributed to the Stockholders and Optionholders, then at each such time, the Representative will in good faith determine the appropriate amounts to be paid to the Stockholders and Optionholders from the Representative Holdback Amount and will cause such amounts to be paid from the Representative Holdback Amount to the Stockholders and to the Surviving Corporation on behalf of the Optionholders. As promptly as practicable following the receipt of funds for the Optionholders and, in any event, no later than the next scheduled payroll of the Company and its Subsidiaries, the Company will distribute to the Optionholders any payments received on their behalf under this Section 1.07(g). None of the Escrow Agent, the Paying Agent, the Surviving Corporation or Buyer will have any liability or obligation to any Stockholder or Optionholder or the Representative for any distribution made in accordance with the instructions of the Representative pursuant to this Section 1.07(g). (h) The parties hereto agree that any payment made pursuant to this Section 1.07 shall be treated as an adjustment to the aggregate consideration for Tax purposes, unless otherwise required by applicable Law.

Post-Closing Merger Consideration Adjustment. Following the Closing Date, the Estimated Merger Consideration will be adjusted adjusted, if at all, as set forth below: (a) Buyer will prepare and deliver to the Representative within ninety sixty (9060) days after the Closing Date (i) an unaudited balance sheet of the Company and its Subsidiaries as of the Adjustment Calculation Time (for the avoidance of doubt, taking into account any actions taken pursuant to Section 5.01(d)) (the “Closing Balance Sheet”) and ), (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 on set forth in the Estimated Closing StatementStatement 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, Indebtedness and Transaction Expenses will be determined, in each case, in good faith, on a consolidated basis in accordance with the definitions set forth in this Agreement and the Accounting Principles. The Closing Balance Sheet and Closing Statement (i) will not include any changes in assets or liabilities as a result of purchase or other accounting adjustments or other changes arising from or resulting as a consequence of the Transactions, and (ii) will be based on facts and circumstances as they exist as of the Adjustment Calculation Time and will exclude the effect of any act, decision or event occurring on or after the Closing. The parties Parties agree that the purpose of preparing the Closing Balance Sheet and the Closing Statement and calculating Final Merger Consideration is solely to (x) accurately measure the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Indebtedness and Transaction Expenses and (y) measure the difference in Closing Net Working Capital from the Lower Bound Target Net Working Capital or Upper Bound Target Net Working Capital, as applicable, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, reserves classifications or estimation methodologies for that are different from the purpose of calculating Final Merger Consideration than were used in the calculation of Estimated Merger ConsiderationAccounting Principles. (b) On or prior to the thirtieth sixtieth (30th60th) day following Buyer’s delivery of the Closing Balance Sheet and the Closing Statement, the Representative will 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, if any. During such 30-day 60‑day period, and any period of dispute thereafter with respect to such Closing Balance Sheet and/or Closing Statement, subject to reasonable nondisclosure obligations, Buyer will, and will cause the Company Surviving Corporation and its Subsidiaries to, (i) provide the Representative and its Advisors reasonable access during reasonable hours to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel of the Company Surviving Corporation and its Subsidiaries (including Company 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 CompanySurviving Corporation’s Advisors accountants and their work papers, and (ii) otherwise reasonably cooperate with and assist the Representative and its Advisors in connection with such review; provided that such access (a) shall be limited to documents and personnel that relates to the Closing Balance Sheet and the Closing Statement and (b) shall be exercised in a manner that does not unreasonably interfere with the normal business operations of Buyer or the Surviving Corporation. 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 Parties upon delivery of the Notice of Disagreement. If the Representative does not deliver to Buyer a Notice of Disagreement within such 30-day 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, final and binding and conclusive upon the parties Parties as of the expiration of such 30-day 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 1.071.08. (c) Following Buyer’s receipt of any Notice of Disagreement, the Representative and Buyer will discuss may attempt to negotiate in good faith to resolve the disputed matters set forth therein, and upon any all such resolution, the Closing Balance Sheet discussions and Closing Statement will be updated and prepared in accordance with the agreement of 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. Any written resolution executed by Buyer and the Representative during such thirty (30) day period following Buyer’s receipt of a Notice of Disagreement as to any item identified in the Notice of Disagreement will be final, binding and conclusive on the parties. (d) In the event that the Representative and Buyer fail to agree on resolve any of the Representative’s proposed adjustments set forth in the Notice of Disagreement within thirty (30) days after Buyer receives the Notice of DisagreementDisagreement (or such longer period as agreed by Buyer and the Representative in writing), the Representative and Buyer agree to jointly select a nationally recognized accounting firm, and use their respective reasonable best efforts to cause Xxxxx Xxxxxxxx LLP (provided that if Xxxxx Xxxxxxxx LLP is not independent or 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 45 forty‑five (45) days immediately following such first 30-day 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 Disagreement and the Representative canwere not agree on an accounting firm within fifteen (15) days after such first 30-day period, each of Buyer and the Representative will promptly select a nationally recognized accounting firm and such two accounting firms will designate a third nationally recognized accounting firm that neither presently is, nor in the past three years has been, engaged by either party. The accounting firm so agreed to resolved directly by Buyer and the Representative or the third accounting firm so selected by the two accounting firms in accordance with the immediately preceding sentence is hereinafter referred to as the “Firm”Representative. Buyer and the Representative will mutually 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 solely by aggregating (i) the Closing Statement items that were never in dispute (ii) the resolution of those disputed items that were resolved directly by Buyer and the Representative and (iii) the Firm’s determination with respect to the extent such amounts are remaining disputed items, in dispute) solely in accordance with this Agreementeach case, 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, Indebtedness and Transaction Expenses, in each case, as determined adjusted by the Firm in accordance with this Section 1.07(c1.08(c), will be final, final and binding and conclusive on the parties 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, andthe Closing Statement and the resulting Closing Net Working Capital, subject Closing Cash, Closing Indebtedness and Transaction Expenses are finally determined pursuant to Section 11.151.08(b), Section 11.16 and Section 11.17, each of the parties hereto will be entitled to enforce such determination in a court of competent jurisdiction. The Firm will provide a written report to are agreed upon by Buyer and the Representative, if requested Representative pursuant to this Section 1.08(c) or are determined by either of them, which sets forth in reasonable detail the basis for the Firm’s final determination. In connection with the resolution of any dispute, the Firm will have reasonable access in accordance with this Section 1.08(c) is referred to all documents, records, work papers, facilities and personnel of as the Company and its Subsidiaries necessary to make its determination. Each party will be afforded the opportunity to present to the Firm any material such party deems relevant to the determination and will have a continuing opportunity to discuss the matter and its position with the Firm, but no such presentation of materials or communication will be on an ex parte basis and each party will be afforded access to copies of all materials presented by each other party. “Settlement Date.” The fees, costs and expenses of the Firm will be allocated between Buyer, on the one hand, and RepresentativeRepresentative (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 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. Representative (e) The Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses (as revised to reflect the resolution of any disputed matters in accordance with this Section 1.07) will be deemed to be final, binding and conclusive, upon the earliest of (i) the failure on behalf of the Representative to provide a Notice of Disagreement within thirty (30) days after the Representative receives the Closing Balance Sheet Stockholders and the Closing Statement pursuant to Section 1.07(b), (ii) the resolution in writing of all disputes set forth in the Notice of Disagreement pursuant to Section 1.07(c) by Buyer and the Representative, or (iii) the resolution of all disputes set forth in the Notice of Disagreement by the Firm pursuant to Section 1.07(dOptionholders). (f) Within two (2) Business Days following the final determination of the Closing Balance Sheet and the Closing Statement in accordance with Section 1.07(e) (such date, the “Settlement Date”): (id) 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 at such time 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 shall be remitted to the Surviving Corporation for payment to such Persons through the Surviving Corporation’s payroll procedures subject to applicable Tax withholding pursuant to Section 1.10, and the Surviving Corporation shall make such payments promptly following receipt thereof. The Adjustment Escrow Account is Buyer’s and Merger Sub’s Funds shall be the sole and exclusive source of recovery for any Excess Amount owing to Buyer, Merger Sub or, following the Closing, the Surviving Corporation hereunderAmount. (iie) If the Final Merger Consideration exceeds the Estimated Merger Consideration (such excess, the “Adjustment Amount”), then (i) Buyer will will, within five (5) Business Days after the Settlement Date, make payment of the Adjustment Amount by wire transfer of immediately available funds, 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 Account, within five (5) Business Days after the Settlement Date, to or as directed by the Representative (or its designee). Notwithstanding the foregoing, in no event shall the Adjustment Amount exceed an amount equal to $10,000,000. (g) When the Final Merger Consideration is finally determined pursuant to Section 1.07(e), the Representative will in good faith compute or re-compute, as the case may be, (i) the number of Vested Options, (ii) the Aggregate Fully-Diluted Common Shares, (iii) the Aggregate Option Exercise Price, (iv) the Final Adjusted Merger Consideration, (v) the Final Common Stock Merger Consideration, (vi) the Final Common Stock Per Share Merger Consideration, (vii) the Final Option Per Share Merger Consideration, and (viii) the appropriate amount payable to each Stockholder and Optionholder based on the foregoing from the Remaining Adjustment Escrow Funds, the Adjustment Amount and the Representative Holdback Amount, taking into account amounts previously received by such Stockholders and Optionholders as Closing Stock Payments or Closing Option Payments, in each case, in accordance with this Agreement and the terms of the Option Plan (and, for purposes of this Section 1.07(g), making such calculation as though all Closing Option Payments had been made without regard to reductions under any Retention Arrangement). Promptly thereafter, the Representative will notify the Escrow Agent and the Paying Agent, as applicable, of such calculations and the amount that should be distributed by them to each Stockholder and to the Surviving Corporation on behalf of each Optionholder based upon the calculations and re-calculations contemplated by the immediately preceding sentence. For the avoidance of doubt, each Stockholder and Optionholder will receive the difference between (x) the amounts payable to such Stockholder or Optionholder based upon the calculations and re-calculations contemplated by this Section 1.07(g) and (y) the Closing Stock Payment or Closing Option Payment received by such Stockholder or Optionholder, as applicable (for purposes of this Section 1.07(g), making such calculation as though all Closing Option Payments had been made without regard to reductions under any Retention Arrangement). The Representative, the Escrow Agent, and the Paying Agent, as applicable, will distribute such amounts, as applicable, in accordance with the written instructions so received from the Representative. If, at the time of the calculation of Final Adjusted Merger Consideration, the Representative determines subject to retain funds in the Representative Holdback Amount under Section 11.18(b10.19(b), and at any time and from time to time thereafter determines a portion of such funds should be distributed to the Stockholders and Optionholders, then at each such time, the Representative will in good faith determine the appropriate amounts to be paid to the Stockholders and or Optionholders from based on each such holder’s Pro Rata Portion; provided, that (x) notwithstanding anything contained herein to the Representative Holdback contrary, in satisfying its obligations pursuant to this Section 1.08(e), in no event shall Buyer be required to make payments that, in the aggregate, exceed the Adjustment Escrow Deposit Amount and will cause (y) the portion of any such amounts payable to Optionholders shall be paid from the Representative Holdback Amount to the Stockholders and remitted to the Surviving Corporation on behalf of for payment to such Persons through the Optionholders. As promptly as practicable following the receipt of funds for the Optionholders andSurviving Corporation’s payroll procedures subject to applicable Tax withholding pursuant to Section 1.10, in any event, no later than the next scheduled payroll of the Company and its Subsidiaries, the Company will distribute to the Optionholders any payments received on their behalf under this Section 1.07(g). None of the Escrow Agent, the Paying Agent, the Surviving Corporation or Buyer will have any liability or obligation to any Stockholder or Optionholder or the Representative for any distribution made in accordance with the instructions of the Representative pursuant to this Section 1.07(g)shall make such payments promptly following receipt thereof. (hf) The parties Parties hereto agree that any payment made pursuant to this Section 1.07 1.08 shall be treated for all purposes (including for Tax purposes) as an adjustment to the aggregate consideration for Tax purposesconsideration, unless otherwise required by applicable Law.

Post-Closing Merger Consideration Adjustment. Following the Closing Date, the Estimated Merger Consideration will be adjusted adjusted, if at all, dollar-for-dollar 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 (for the avoidance of doubt, taking into account any actions taken pursuant to Section 5.01(d)) (the “"Closing Balance Sheet”") and (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 '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 on the Estimated Closing Statement. The Closing Balance Sheet and Closing Statement will be prepared, and Closing Net Working Capital, the Closing Cash, Closing Indebtedness, Indebtedness and Transaction Expenses will be determined, in each case, in good faith, on a consolidated basis in accordance with GAAP and the Accounting Principlesdefinitions set forth in this Agreement, using, solely to the extent consistent with GAAP, the same accounting methods, assumptions, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in the preparation of the Latest Balance Sheet except that the Closing Net Working Capital shall be calculated in accordance with Exhibit B using, solely to the extent consistent with GAAP, the same accounting methods, assumptions, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in the preparation of the Latest Balance Sheet. The Closing Balance Sheet and Closing Statement (i) will not include any changes in assets or liabilities solely as a result of implementing purchase or other accounting adjustments or other changes arising from or resulting as a consequence of the Transactions, and (ii) except as required by GAAP will be based on facts and circumstances as they exist as of the Adjustment Calculation Time and will exclude the effect of any act, decision or event occurring on or after the Closing. The parties agree that the purpose of preparing the Closing Balance Sheet and the Closing Statement and calculating Final Merger Consideration is solely to (x) accurately measure the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Indebtedness and Transaction Expenses and (y) measure the difference in Closing Net Working Capital from Target Net Working Capital, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, methods or practices, procedures, reserves classifications or estimation methodologies for the purpose of calculating Final Merger Consideration than were used in the calculation of Estimated Merger Consideration, assuming the methodologies used in calculating Estimated Merger Consideration were in accordance with GAAP. (b) On or prior to the thirtieth forty-fifth (30th45th) day following Buyer’s 's delivery of the Closing Balance Sheet and the Closing Statement, the Representative will may give Buyer a written notice stating in reasonable detail the Representative’s 's objections (a “"Notice of Disagreement”") to the Closing Balance Sheet and the Closing Statement, if any. During such 30-day 45‑day period, and any period of dispute thereafter with respect to such Closing Balance Sheet and/or Closing Statement, subject to reasonable nondisclosure obligations, Buyer will, and will cause the Company and its Subsidiaries to, (i) provide the Representative and its Advisors reasonable access during reasonable hours to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel of the Company and its Subsidiaries (including Company personnel responsible for accounting and finance and senior management) and, subject to execution of any customary work paper access letters required by them, the Company’s Advisors 's accountants and their work papers, and (ii) otherwise reasonably cooperate with and assist the Representative and its Advisors in connection with such review, in each case during normal business hours, upon reasonable advance notice and in a manner that does not unreasonably interfere with the operations of the Company's business. 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 30-day 45‑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, final and binding and conclusive upon the parties as of the expiration of such 3045-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 1.07. (c) Following Buyer’s 's receipt of any Notice of Disagreement, the Representative and Buyer will discuss attempt to negotiate in good faith to resolve the disputed matters set forth therein, and upon any all such resolution, the Closing Balance Sheet discussions and Closing Statement will be updated and prepared in accordance with the agreement of 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. Any written resolution executed by Buyer and the Representative during such thirty (30) day period following Buyer’s receipt of a Notice of Disagreement as to any item identified in the Notice of Disagreement will be final, binding and conclusive on the parties. (d) In the event that the Representative and Buyer fail to agree on any of the Representative’s 's proposed adjustments set forth in the Notice of Disagreement within thirty (30) days after Buyer receives the Notice of Disagreement, the Representative and Buyer agree to jointly select a nationally recognized accounting firm, and use their respective reasonable best efforts to cause BDO USA, LLP (provided that if BDO USA, 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 45 days immediately following such first 30-day 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 Representative cannot agree on an accounting firm within fifteen (15) days after such first 30-day period, each of Buyer and the Representative will promptly select a nationally recognized accounting firm and such two accounting firms will designate a third nationally recognized accounting firm that neither presently is, nor in the past three years has been, engaged by either party. The accounting firm so agreed to by Buyer and the Representative or the third accounting firm so selected by the two accounting firms in accordance with the immediately preceding sentence is hereinafter referred to as the “Firm”. Buyer and the Representative will mutually 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. 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 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, Indebtedness and Transaction Expenses, in each case, as determined by the Firm in accordance with this Section 1.07(c), will be final, final and binding and conclusive 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, andthe Closing Statement and the resulting Closing Net Working Capital, subject Closing Cash, Closing Indebtedness and Transaction Expenses are finally determined pursuant to Section 11.151.07(b), Section 11.16 and Section 11.17, each of the parties hereto will be entitled to enforce such determination in a court of competent jurisdiction. The Firm will provide a written report to are agreed upon by Buyer and the Representative, if requested Representative pursuant to this Section 1.07(c) or are determined by either of them, which sets forth in reasonable detail the basis for the Firm’s final determination. In connection with the resolution of any dispute, the Firm will have reasonable access in accordance with this Section 1.07(c) is referred to all documents, records, work papers, facilities and personnel of as the Company and its Subsidiaries necessary to make its determination. Each party will be afforded the opportunity to present to the Firm any material such party deems relevant to the determination and will have a continuing opportunity to discuss the matter and its position with the Firm, but no such presentation of materials or communication will be on an ex parte basis and each party will be afforded access to copies of all materials presented by each other party. "Settlement Date." The fees, costs and expenses of the Firm will be allocated between Buyer, on the one hand, and Representative, 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 $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. (e) The Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses (as revised to reflect the resolution of any disputed matters in accordance with this Section 1.07) will be deemed to be final, binding and conclusive, upon the earliest of (i) the failure of the Representative to provide a Notice of Disagreement within thirty (30) days after the Representative receives the Closing Balance Sheet and the Closing Statement pursuant to Section 1.07(b), (ii) the resolution in writing of all disputes set forth in the Notice of Disagreement pursuant to Section 1.07(c) by Buyer and the Representative, or (iii) the resolution of all disputes set forth in the Notice of Disagreement by the Firm pursuant to Section 1.07(d). (f) Within two (2) Business Days following the final determination of the Closing Balance Sheet and the Closing Statement in accordance with Section 1.07(e) (such date, the “Settlement Date”): (id) 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 two (2) 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 at such time 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 the Representative (or its designee). The Adjustment Escrow Account is Buyer’s and Merger Sub’s sole and exclusive source of recovery for any Excess Amount owing , with all such amounts received by the Representative (or its designee) pursuant to Buyerthis Section 1.07(d), Merger Sub orsubject to Section 10.19(b), following to be paid to the Closing, the Surviving Corporation hereunderStockholders or Optionholders in accordance with Section 1.07(f). (iie) If the Final Merger Consideration exceeds the Estimated Merger Consideration (such excess, the “"Adjustment Amount”"), then (i) Buyer will will, within two (2) Business Days after the Settlement Date, make payment of the Adjustment Amount by wire transfer of immediately available funds, funds to 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 Account, within two (2) Business Days after the Settlement Date, to the Representative (or its designee). Notwithstanding , with all such amounts received by the foregoingRepresentative (or its designee) pursuant to this Section 1.07(e), subject to Section 10.19(b), to be paid to the Stockholders or Optionholders pursuant to Section 1.07(f); provided, that in no event shall the Adjustment Amount paid by Buyer exceed an amount equal to $10,000,0002,000,000. (gf) When the Final Merger Consideration is finally determined pursuant to Section 1.07(e1.07(b) or Section 1.07(c), the Representative will in good faith compute or re-compute, as the case may be, (i) the number of Vested Options, (ii) the Aggregate Fully-Diluted Common Shares, (iii) the Aggregate Option Exercise Price, (iv) the Final Adjusted Merger Consideration, (v) the Final Common Stock Merger Consideration, (vi) the Final Common Stock Per Share Merger Consideration, (vii) the Final Option Per Share Merger Consideration, Consideration and (viii) the appropriate amount payable to each Stockholder and Optionholder based on the foregoing from the Remaining Adjustment Escrow Funds, the Adjustment Amount and the Representative Holdback Amount, taking into account amounts previously received by such Stockholders and Optionholders as Closing Stock Payments or Closing Option Payments, in each case, in accordance with this Agreement and the terms of the Option Plan (and, for purposes of this Section 1.07(g), making such calculation as though all Closing Option Payments had been made without regard to reductions under any Retention Arrangement)Plan. Promptly thereafter, the Representative will notify the Escrow Agent and the Paying Agent, as applicable, of such calculations and the amount that should be distributed by them (and, subject to Section 10.19(b), shall ensure that the Paying Agent has received any amounts paid by Buyer to the Representative or its designee, if not the Paying Agent, under Section 1.07(d) or Section 1.07(e) to the extent such amounts are payable to the Stockholders and Optionholders pursuant to this Agreement) and shall cause the Escrow Agent and the Paying Agent, as applicable, to pay such amounts owed to each Stockholder and to the Surviving Corporation on behalf of each Optionholder Optionholder, based upon the calculations and re-calculations contemplated by the immediately preceding sentence. For the avoidance of doubt, each Stockholder and Optionholder will receive the difference between (x) the amounts payable to such Stockholder or Optionholder based upon the calculations and re-calculations contemplated by this Section 1.07(g1.07(f) and (y) the Closing Stock Payment or Closing Option Payment received at the Closing by such Stockholder or Optionholder, as applicable (for purposes of this Section 1.07(g), making such calculation as though all Closing Option Payments had been made without regard to reductions under any Retention Arrangement)applicable. The Representative, the Escrow Agent, the Surviving Corporation, and the Paying Agent, as applicable, will distribute such amounts, as applicable, in accordance with the irrevocable written instructions so received from the Representative. If, at the time of the calculation of Final Adjusted Merger Consideration, the Representative determines to retain funds in the Representative Holdback Amount under Section 11.18(b10.19(b), and at any time and from time to time thereafter determines a portion of such funds should be distributed to the Stockholders and Optionholders, then at each such time, the Representative will in good faith determine the appropriate amounts to be paid to the Stockholders and Optionholders from the Representative Holdback Amount (taking into account any changes in Vested Options, Aggregate Option Exercise Price or Aggregate Fully-Diluted Common Shares necessary based on such distribution of funds and any prior amounts received as Closing Stock Payments, Closing Option Payments or under this Section 1.07(f)) and will cause such amounts to be paid from the Representative Holdback Amount to the Stockholders and to the Surviving Corporation on behalf of the Optionholders. As promptly as practicable following the receipt of funds for the Optionholders and, in any event, no later than the next scheduled full payroll cycle of the Company and its Subsidiaries, the Company Surviving Corporation will distribute to the Optionholders any payments received on their behalf under this Section 1.07(g1.07(f). None of the Escrow Agent, the Paying Agent, the Surviving Corporation or Buyer will have any liability or obligation to any Stockholder or Optionholder or the Representative for any distribution made in accordance with the instructions of the Representative pursuant to this Section 1.07(g1.07(f), Section 1.06(a) or Section 1.06(b). (hg) The parties hereto agree that any payment made pursuant to this Section 1.07 shall be treated as an adjustment to the aggregate consideration for Tax purposes, unless otherwise required by applicable Law.

Post-Closing Merger Consideration Adjustment. Following the Closing Date, the Estimated Merger Consideration will be adjusted 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 (for the avoidance of doubt, taking into account any actions taken pursuant to Section 5.01(d)) (the “Closing Balance Sheet”) and (ii) a statement (the “Closing Statement”) setting forth a calculation of (1) Closing Net Working Capital, (2) Closing Cash, (3) 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 on the Estimated Closing Statement. The Closing Balance Sheet and Closing Statement will be prepared, and Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses will be determined, in each case, in good faith, in accordance with the Accounting Principles. The Closing Balance Sheet and Closing Statement (i) will not include any changes in assets or liabilities as a result of purchase or other accounting adjustments or other changes arising from or resulting as a consequence of the Transactions, and (ii) will be based on facts and circumstances as they exist as of the applicable Adjustment Calculation Time and will exclude the effect of any act, decision or event occurring on at or after the Closing. The parties agree that the purpose of preparing the Closing Balance Sheet and the Closing Statement and calculating Final Merger Consideration is solely to (x) accurately measure the Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses and (y) measure the difference in Closing Net Working Capital from Target Net Working Capital, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, reserves classifications or estimation methodologies than those set forth in the Accounting Principles for the purpose of calculating Final Merger Consideration than were used in the calculation of or Estimated Merger Consideration. (b) On or prior to the thirtieth (30th) day following BuyerRepresentative’s delivery receipt of the Closing Balance Sheet and the Closing Statement, the Representative will 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, if any. During such 30-day thirty (30)-day period, and any period of dispute thereafter with respect to such Closing Balance Sheet and/or Closing Statement, subject to reasonable nondisclosure obligations, Buyer will, and will cause the Company and its Subsidiaries to, (i) provide the Representative and its Advisors reasonable access during reasonable hours to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel of the Company and its Subsidiaries (including Company personnel responsible for accounting and finance and senior management) and, subject to execution of any customary work paper access letters required by them, the Company’s Advisors and their work papers, and (ii) otherwise reasonably 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 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 30-day thirty (30)-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, final and binding and conclusive upon the parties as of the expiration of such 30-day thirty (30)-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 1.07. (c) Following BuyerXxxxx’s receipt of any Notice of Disagreement, the Representative and Buyer Xxxxx will discuss in good faith to resolve the disputed matters set forth therein, and upon any such resolution, the Closing Balance Sheet and Closing Statement will be updated and prepared in accordance with the agreement of Buyer and the Representative. Any written resolution executed by Buyer and the Representative during such thirty (30) day period following Buyer’s receipt of a Notice of Disagreement as to any item identified in the Notice of Disagreement will be final, binding and conclusive on the parties. (d) In the event that the Representative and Buyer Xxxxx 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, the Representative and Buyer agree to jointly select a nationally recognized accounting firm, and use their respective reasonable best efforts to cause such a nationally recognized independent accounting firmor valuation firm mutually acceptable to the Representative and Buyer (the “Firm”), within 45 forty-five (45) days immediately following such first 30-day thirty (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 Representative cannot agree on an accounting firm within fifteen (15) days after such first 30-day period, each of Buyer and the Representative will promptly select a nationally recognized accounting firm and such two accounting firms will designate a third nationally recognized accounting firm that neither presently is, nor in the past three years has been, engaged by either party. The accounting firm so agreed to by Buyer and the Representative or the third accounting firm so selected by the two accounting firms in accordance with the immediately preceding sentence is hereinafter referred to as the “Firm”. Buyer and the Representative will mutually 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 AgreementAgreement (including the Accounting Principles). Buyer Xxxxx 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 written submissions by Buyer Xxxxx 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 1.07(c), will be final, final and binding and conclusive on the parties on the date the Firm delivers its final determination in writing to Buyer and the Representative, and, subject to Section 11.15, Section 11.16 and Section 11.17, each of the parties hereto will be entitled to enforce such determination in a court of competent jurisdiction. The Firm will provide a written report to Buyer and the Representative, if requested by either of them, which sets forth in reasonable detail the basis for the Firm’s final determination. In connection with the resolution of any dispute, the Firm will have reasonable access to all documents, records, work papers, facilities and personnel of the Company and its Subsidiaries necessary to make its determination. Each party will be afforded the opportunity to present to the Firm any material such party deems relevant to the determination and will have a continuing opportunity to discuss the matter and its position with the Firm, but no such presentation of materials or communication will be on an ex parte basis and each party will be afforded access to copies of all materials presented by each other party. The fees, costs and expenses of the Firm will be allocated between Buyer, on the one hand, and Representative, 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 $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. (e) The Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses (as revised to reflect the resolution of any disputed matters in accordance with this Section 1.07) will be deemed to be final, binding and conclusive, upon the earliest of (i) the failure of the Representative to provide a Notice of Disagreement within thirty (30) days after the Representative receives the Closing Balance Sheet and the Closing Statement pursuant to Section 1.07(b), (ii) the resolution in writing of all disputes set forth in the Notice of Disagreement pursuant to Section 1.07(c) by Buyer and the Representative, or (iii) the resolution of all disputes set forth in the Notice of Disagreement by the Firm pursuant to Section 1.07(d). (f) Within two (2) Business Days following the final determination of the Closing Balance Sheet and the Closing Statement in accordance with Section 1.07(e) (such date, the “Settlement Date”): (id) If the Estimated Merger Consideration exceeds the Final Merger Consideration (such excess, the “Excess Amount”), the number of Buyer and the Representative will deliver joint written instructions Shares equal to the Escrow Agent to cause the Escrow Agent to pay to Buyer (or its designee), by wire transfer of immediately available funds, i) the Excess Amount from divided by (ii) $6.19, shall, on a pro rata basis among the Adjustment Escrow Funds. In the event that at such time the Excess Amount is less than the Adjustment Escrow Funds (such shortfallStockholders, 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 the Representative (or its designee). The Adjustment Escrow Account is Buyer’s and Merger Sub’s sole and exclusive source of recovery be automatically cancelled for any Excess Amount owing to Buyer, Merger Sub or, following the Closing, the Surviving Corporation hereunderno consideration. (iie) If the Final Merger Consideration exceeds the Estimated Merger Consideration (such excess, the “Adjustment Amount”), then within five (i5) Buyer will make payment of Business Days after the Adjustment Amount by wire transfer of immediately available funds, to 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 to the Representative (or its designee). Notwithstanding the foregoing, in no event shall the Adjustment Amount exceed an amount equal to $10,000,000. (g) When date on which the Final Merger Consideration is finally determined pursuant to Section 1.07(e1.07(b) or Section 1.07(c), Buyer shall issue to each Stockholder, on a pro rata basis among the Representative will in good faith compute or re-computeStockholders, as the case may be, number of Buyer Shares equal to (i) the number of Vested Options, Adjustment Amount divided by (ii) $6.19. (f) Buyer shall take all necessary actions, including updating its capitalization table to effect the Aggregate Fully-Diluted Common Shares, (iiicancellation or issuance of Buyer Shares as set forth in Section 1.07(d) the Aggregate Option Exercise Price, (iv) the Final Adjusted Merger Consideration, (v) the Final Common Stock Merger Consideration, (vi) the Final Common Stock Per Share Merger Consideration, (vii) the Final Option Per Share Merger Consideration, and (viii) the appropriate amount payable to each Stockholder and Optionholder based on the foregoing from the Remaining Adjustment Escrow Funds, the Adjustment Amount and the Representative Holdback Amount, taking into account amounts previously received by such Stockholders and Optionholders as Closing Stock Payments or Closing Option Payments, in each case, in accordance with this Agreement and the terms of the Option Plan (and, for purposes of this Section 1.07(g), making such calculation as though all Closing Option Payments had been made without regard to reductions under any Retention Arrangement). Promptly thereafter, the Representative will notify the Escrow Agent and the Paying Agent, as applicable, of such calculations and the amount that should be distributed by them to each Stockholder and to the Surviving Corporation on behalf of each Optionholder based upon the calculations and re-calculations contemplated by the immediately preceding sentence. For the avoidance of doubt, each Stockholder and Optionholder will receive the difference between (x) the amounts payable to such Stockholder or Optionholder based upon the calculations and re-calculations contemplated by this Section 1.07(g) and (y) the Closing Stock Payment or Closing Option Payment received by such Stockholder or Optionholder, as applicable (for purposes of this Section 1.07(g), making such calculation as though all Closing Option Payments had been made without regard to reductions under any Retention Arrangement). The Representative, the Escrow Agent, and the Paying Agent, as applicable, will distribute such amounts, as applicable, in accordance with the written instructions so received from the Representative. If, at the time of the calculation of Final Adjusted Merger Consideration, the Representative determines to retain funds in the Representative Holdback Amount under Section 11.18(b), and at any time and from time to time thereafter determines a portion of such funds should be distributed to the Stockholders and Optionholders, then at each such time, the Representative will in good faith determine the appropriate amounts to be paid to the Stockholders and Optionholders from the Representative Holdback Amount and will cause such amounts to be paid from the Representative Holdback Amount to the Stockholders and to the Surviving Corporation on behalf of the Optionholders. As promptly as practicable following the receipt of funds for the Optionholders and, in any event, no later than the next scheduled payroll of the Company and its Subsidiaries, the Company will distribute to the Optionholders any payments received on their behalf under this Section 1.07(g). None of the Escrow Agent, the Paying Agent, the Surviving Corporation or Buyer will have any liability or obligation to any Stockholder or Optionholder or the Representative for any distribution made in accordance with the instructions of the Representative pursuant to this Section 1.07(g1.07(e). (hg) The parties hereto agree that any payment made pursuant to this Section 1.07 shall be treated as an adjustment to the aggregate consideration for Tax purposes, unless otherwise required by applicable Law.

Post-Closing Merger Consideration Adjustment. Following the Closing Date, the Estimated Merger Consideration will be adjusted adjusted, if at all, dollar-for-dollar 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 (for the avoidance of doubt, taking into account any actions taken pursuant to Section 5.01(d)) (the “Closing Balance Sheet”) and (ii) a statement (the “Closing Statement”) setting forth a calculation of (1) Closing Net Working Capital, (2) Closing Cash, (3) Closing Indebtedness, (4) the Transaction Expenses, (5) Buyer’s calculation of the Final Adjusted Merger Consideration derived from the foregoing, and (6) with respect to each of the foregoing, the changes in such amounts from the corresponding amounts on the Estimated Closing Statement. The Closing Balance Sheet and Closing Statement will be prepared, and Closing Net Working Capital, Closing Cash, Closing Indebtedness, Indebtedness and Transaction Expenses will be determined, in each case, in good faith, on a consolidated basis in accordance with the Accounting Principles. definitions set forth in this Agreement, and, with respect to the Closing Balance Sheet and Net Working Capital, using the same accounting methods, assumptions, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in the preparation of the Latest Audited Balance Sheet, except, in the case of Net Working Capital, as adjusted in the manner set forth (including with reference to the accounts and contractual adjustments specified) on Exhibit E. The Closing Balance Sheet and Closing Statement (i) will not include any changes in assets or liabilities as a result of purchase or other accounting adjustments or other changes arising from or resulting as a consequence of the Transactions, and (ii) will be based on facts and circumstances as they exist as of the Adjustment Calculation Time and will exclude the effect of any act, decision or event occurring on or after the Closing. The parties agree that the purpose of preparing the Closing Balance Sheet and the Closing Statement and calculating Final Adjusted Merger Consideration is solely to (x) accurately measure the amount of Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses and (y) measure the difference in Closing Net Working Capital from Target Net Working Capital, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, reserves classifications or estimation methodologies for the purpose of calculating Final Adjusted Merger Consideration than were used in the calculation of Estimated Merger Consideration. (b) On or prior to the thirtieth forty-fifth (30th45th) day following Buyer’s delivery of the Closing Balance Sheet and the Closing Statement, the Representative will may give Buyer a written notice stating in reasonable detail the Representative’s objections (a “Notice of Disagreement”) proposed adjustments, if any, to the Closing Balance Sheet and the Closing Statement, if anyStatement (a “Notice of Disagreement”). During such 3045-day period, period and any period of dispute thereafter with respect to such Closing Balance Sheet and/or Closing Statement, subject to reasonable nondisclosure obligations, Buyer will, and will cause the Company and its Subsidiaries to, (i) provide the Representative and its Advisors reasonable access during reasonable hours to the relevant books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities, and personnel of the Company and its Subsidiaries (including Company personnel responsible for accounting and finance and the Company’s senior management) and, subject to execution in connection with the Representative’s review of any customary work paper access letters required by them, the Company’s Advisors Closing Balance Sheet and their work papersClosing Statement, and (ii) otherwise reasonably cooperate with and assist the Representative and its Advisors in connection with such review. Any determination set forth on the Closing Statement which (including the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses) that 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 3045-day period, then the Closing Balance Sheet, Sheet and the Closing Statement and (including the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses Expenses) will be final, final and binding and conclusive upon the parties as of the expiration of such 3045-day period, and the Final Adjusted Merger Consideration set forth in the Closing Statement will constitute the Final Adjusted Merger Consideration for all purposes of this Section 1.07. (c) Following Buyer’s receipt of any Notice of Disagreement, the Representative and Buyer will discuss in good faith attempt to resolve the disputed matters set forth therein, and upon any all such resolution, the Closing Balance Sheet discussions and Closing Statement will be updated and prepared in accordance with the agreement of 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. Any written resolution executed by Buyer and the Representative during such thirty (30) day period following Buyer’s receipt of a Notice of Disagreement as to any item identified in the Notice of Disagreement will be final, binding and conclusive on the parties. (d) 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, the Representative and Buyer agree to jointly select a nationally recognized accounting firm, and use their respective reasonable best efforts to cause KPMG LLP (the “Firm”) to make the final written determination of all matters included in the Notice of Disagreement that remain in dispute; provided, however, that if KPMG LLP is unable or unwilling to serve in such capacity, the Representative and Buyer shall jointly select an alternative Firm that is an independent and impartial, nationally-recognized independent accounting or valuation firm, within 45 forty-five (45) days immediately following such first 30-day period; further, to make the final written determination of all matters which remain in dispute provided, however, that were included in the Notice of Disagreement. If, Buyer and if the Representative cannot agree on and Buyer are unable or unwilling to jointly select an accounting firm alternative Firm within fifteen that timeframe (15) days after such first 30-day period, each of Buyer and including if the Representative will promptly select a nationally resigns 8 and is not timely replaced) then the Firm shall be an independent and impartial, nationally-recognized independent accounting or valuation firm and such two accounting firms will designate a third nationally recognized accounting firm that neither presently is, nor in the past three years has been, engaged by either party. The accounting firm so agreed to by Buyer and the Representative or the third accounting firm so selected by the two accounting firms in accordance with the immediately preceding sentence is hereinafter referred to as the “Firm”American Arbitration Association. Buyer and the Representative will mutually 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 (including the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses), to the extent any such amounts are in dispute) , solely in accordance with this Agreement. Buyer and the Representative will execute a customary engagement letter letter, and will cooperate 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 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, Sheet and the Closing Statement and (including the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness, Indebtedness and Transaction Expenses), in each case, as determined by the Firm in accordance with this Section 1.07(c), will be final, final and binding and conclusive on the parties on the date the Firm delivers its final determination in writing to Buyer and the Representative. The latest date on which the Closing Balance Sheet and the Closing Statement (including the resulting Closing Net Working Capital, andClosing Cash, subject Closing Indebtedness and Transaction Expenses) are deemed final pursuant to Section 11.151.07(b), Section 11.16 and Section 11.17, each of the parties hereto will be entitled to enforce such determination in a court of competent jurisdiction. The Firm will provide a written report to are agreed upon by Buyer and the Representative, if requested Representative pursuant to this Section 1.07(c) or are determined by either of them, which sets forth in reasonable detail the basis for the Firm’s final determination. In connection with the resolution of any dispute, the Firm will have reasonable access in accordance with this Section 1.07(c) is referred to all documents, records, work papers, facilities and personnel of as the Company and its Subsidiaries necessary to make its determination. Each party will be afforded the opportunity to present to the Firm any material such party deems relevant to the determination and will have a continuing opportunity to discuss the matter and its position with the Firm, but no such presentation of materials or communication will be on an ex parte basis and each party will be afforded access to copies of all materials presented by each other party. “Settlement Date.” The fees, costs and expenses of the Firm will be allocated between Buyer, on the one hand, and Representative, 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 $300 of the $500 contested, then the costs and expenses of the Firm will be allocated sixty percent (60% %) (i.e., 300/500) to Buyer and forty percent (40% %) (i.e., 200/500) to the Representative. (e) The Closing Balance Sheet, the Closing Statement and the resulting Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses (as revised to reflect the resolution of any disputed matters in accordance with this Section 1.07) will be deemed to be final, binding and conclusive, upon the earliest of (i) the failure of the Representative to provide a Notice of Disagreement within thirty (30) days after the Representative receives the Closing Balance Sheet and the Closing Statement pursuant to Section 1.07(b), (ii) the resolution in writing of all disputes set forth in the Notice of Disagreement pursuant to Section 1.07(c) by Buyer and the Representative, or (iii) the resolution of all disputes set forth in the Notice of Disagreement by the Firm pursuant to Section 1.07(d). (f) Within two (2) Business Days following the final determination of the Closing Balance Sheet and the Closing Statement in accordance with Section 1.07(e) (such date, the “Settlement Date”): (id) If the Estimated Merger Consideration exceeds the Final Adjusted 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 FundsFund. In Notwithstanding anything to the event that at such time contrary contained herein, Buyer may elect to exclude any “Indebtedness” pursuant to clause (m) of the definition of “Indebtedness” from the Excess Amount is less than the Adjustment Escrow Funds (such shortfall, the “Remaining Adjustment Escrow Funds”and pursue recovery of any amount so excluded pursuant to Section 6.08(p) or Section 10.02(vii), 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 the Representative (or its designee). The Adjustment Escrow Account is Buyer’s and Merger Sub’s sole and exclusive source of recovery for any Excess Amount owing to Buyer, Merger Sub or, following the Closing, the Surviving Corporation hereunder. (iie) If the Final Adjusted Merger Consideration exceeds the Estimated Merger Consideration (such excess, the “Adjustment Amount”), then Buyer will, within five (i5) Buyer will Business Days after the Settlement Date, make payment of the Adjustment Amount by wire transfer of in immediately available funds, to the Representative (or its designee)Paying Agent, 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 to the Representative (or its designee). Notwithstanding the foregoing, in no event shall the Adjustment Amount exceed an amount equal to $10,000,000. (g) When the Final Merger Consideration is finally determined with such amounts received pursuant to this Section 1.07(e), the Representative will in good faith compute or re-compute, as the case may be, (i) the number of Vested Options, (ii) the Aggregate Fully-Diluted Common Shares, (iii) the Aggregate Option Exercise Price, (iv) the Final Adjusted Merger Consideration, (v) the Final Common Stock Merger Consideration, (vi) the Final Common Stock Per Share Merger Consideration, (vii) the Final Option Per Share Merger Consideration, and (viii) the appropriate amount payable subject to each Stockholder and Optionholder based on the foregoing from the Remaining Adjustment Escrow Funds, the Adjustment Amount and the Representative Holdback Amount, taking into account amounts previously received by such Stockholders and Optionholders as Closing Stock Payments or Closing Option Payments, in each case, in accordance with this Agreement and the terms of the Option Plan (and, for purposes of this Section 1.07(g11.19(b), making such calculation as though all Closing Option Payments had been made without regard to reductions under any Retention Arrangement). Promptly thereafter, the Representative will notify the Escrow Agent and the Paying Agent, as applicable, of such calculations and the amount that should be distributed by them to each Stockholder and to the Surviving Corporation on behalf of each Optionholder based upon the calculations and re-calculations contemplated by the immediately preceding sentence. For the avoidance of doubt, each Stockholder and Optionholder will receive the difference between (x) the amounts payable to such Stockholder or Optionholder based upon the calculations and re-calculations contemplated by this Section 1.07(g) and (y) the Closing Stock Payment or Closing Option Payment received by such Stockholder or Optionholder, as applicable (for purposes of this Section 1.07(g), making such calculation as though all Closing Option Payments had been made without regard to reductions under any Retention Arrangement). The Representative, the Escrow Agent, and the Paying Agent, as applicable, will distribute such amounts, as applicable, in accordance with the written instructions so received from the Representative. If, at the time of the calculation of Final Adjusted Merger Consideration, the Representative determines to retain funds in the Representative Holdback Amount under Section 11.18(b), and at any time and from time to time thereafter determines a portion of such funds should be distributed to the Stockholders and Optionholders, then at each such time, the Representative will in good faith determine the appropriate amounts to be paid to the Stockholders and or Optionholders from the Representative Holdback Amount and will cause such amounts to be paid from the Representative Holdback Amount to the Stockholders and to the Surviving Corporation on behalf of the Optionholders. As promptly as practicable following the receipt of funds for the Optionholders and, in any event, no later than the next scheduled payroll of the Company and its Subsidiaries, the Company will distribute to the Optionholders any payments received on their behalf under this Section 1.07(g). None of the Escrow Agent, the Paying Agent, the Surviving Corporation or Buyer will have any liability or obligation to any Stockholder or Optionholder or the Representative for any distribution made in accordance with the instructions of the Representative pursuant to this Section 1.07(g)1.08. (hf) The parties hereto agree that any payment made pursuant to this Section 1.07 shall be treated as an adjustment to the aggregate consideration for Tax purposes, unless otherwise required by applicable Law.