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

Post-Closing Merger Consideration Adjustment. (a) Within ninety (90) days after the Closing Date, the Surviving Corporation shall prepare and deliver a statement (the “Initial Closing Statement”) to Sellers’ Representative setting forth (i) the Surviving Corporation’s determination of Cash as of the close of business on the Closing Date (the “Closing Date Cash”), (ii) all Indebtedness of the Company as of the close of business on the Closing Date (the “Closing Date Indebtedness”), (iii) Current Liabilities as of the close of business on the Closing Date (the “Closing Date Current Liabilities”), (iv) the Seller Transaction Expenses (the “Closing Date Seller Transaction Expenses”) and (v) the Surviving Corporation’s calculation of the Merger Consideration. The Initial Closing Statement (including the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses) shall be prepared and calculated in accordance with GAAP (and, to the extent not inconsistent with GAAP, the past practice of the Company) or as provided in the definitions of this Agreement. If the Surviving Corporation does not deliver the Initial Closing Statement to Sellers’ Representative within one hundred twenty (120) days following the Closing Date, then, at the election of Sellers’ Representative in its sole discretion, either (A) the Estimated Cash, Estimated Indebtedness, Estimated Current Liabilities and Estimated Seller Transaction Expenses shall be deemed the Actual Cash, Actual Indebtedness, Actual Current Liabilities and Actual Seller Transaction Expenses and shall be considered final for all purposes hereunder or (B) Sellers’ Representative shall retain (with the cost borne as set forth in Section 1.10(c)) the CPA Firm to review the calculations of Estimated Cash, Estimated Indebtedness, Estimated Current Liabilities and Estimated Seller Transaction Expenses and make any adjustments necessary thereto consistent with the provisions of this Section 1.10, and the determination of the CPA Firm shall be deemed agreed, final and binding on the parties. (b) Sellers’ Representative, on behalf of the Stockholders, shall complete its review of the Initial Closing Statement within thirty (30) days after the Surviving Corporation’s delivery thereof to Sellers’ Representative. During such review period, the Surviving Corporation shall provide Sellers’ Representative with access to all books and records reasonably requested by Sellers’ Representative to review the Initial Closing Statement (including the calculation and preparation of the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses), 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 Sellers’ Representative. If Sellers’ Representative objects to the contents of the Initial Closing Statement for any reason, Sellers’ Representative shall, on or before the last day of such 30-day period, so inform the Surviving Corporation in writing (a “Sellers’ Objection”), setting forth a specific description of the basis of its determination and the adjustments to the Initial Closing Statement that Sellers’ Representative believes should be made. To the extent any disagreement therewith is not described in a Sellers’ Objection received by Surviving Corporation on or before the last day of such 30-day period, then the items described in the Initial Closing Statement delivered by the Surviving Corporation to Sellers’ Representative shall be deemed agreed, final and binding on the parties. (c) If Sellers’ Representative timely delivers a Sellers’ Objection to the Surviving Corporation, and Sellers’ Representative and the Surviving Corporation are unable to resolve all of their disagreements with respect to the proposed adjustments set forth in the Sellers’ Objection within thirty (30) days following the Surviving Corporation’s receipt of the Sellers’ Objection, then they shall jointly retain the CPA Firm, which, acting as an expert and not as an arbitrator, shall determine, on the basis set forth herein and in accordance with this Section 1.10, and only with respect to those items specifically described in the Sellers’ Objection on which the Surviving Corporation and Sellers’ Representative have not agreed, whether and to what extent, if any, the Merger Consideration requires adjustment. The Surviving Corporation and Sellers’ Representative shall instruct the CPA Firm to deliver its written determination to the Surviving Corporation and Sellers’ Representative no later than 30 days after submitting the matter 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 Sellers’ Representative the amount of the Surviving Corporation’s computation of the Merger Consideration (the “Surviving Corporation’s Position”), and Sellers’ Representative shall specify in writing to the CPA Firm and to the Surviving Corporation the amount of its computation of the Merger Consideration (the “Sellers’ Position”). The CPA Firm’s determination shall be conclusive and binding upon the Surviving Corporation and the Stockholders, absent fraud or manifest error. In resolving any disputed item, the CPA Firm may not assign a value to any disputed item that is greater than the greatest value claimed by the Surviving Corporation or Sellers’ Representative at the time the CPA Firm is retained or less than the smallest value claimed for the item by the Surviving Corporation or Sellers’ Representative at such time. The scope of the dispute(s) to be resolved by the CPA Firm is limited to whether the calculation of Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses were done in a manner consistent with the provisions and definitions of this Agreement and mathematically accurate, and the CPA Firm is not to make any other determination unless jointly requested in writing by Sellers’ Representative and the Surviving Corporation. The fees and disbursements of the CPA Firm (collectively, the “Merger Consideration Dispute Expenses”) shall be borne by (i) Stockholders in that proportion equal to a fraction (expressed as a percentage) the numerator of which is equal to Sellers’ Position minus the Merger Consideration determined by the CPA Firm, and the denominator of which is equal to Sellers’ Position minus Surviving Corporation’s Position and (ii) the Surviving Corporation in that proportion equal to a fraction (expressed as a percentage) equal to one (1) minus the fraction described in clause (i). For example, if Sellers’ Position is that the Merger Consideration should be $150,000 and the Surviving Corporation’s Position is that the Merger Consideration should be $100,000, the CPA Firm determines that the Merger Consideration should be $130,000 and the Merger Consideration Dispute Expenses are $10,000, then (i) the Stockholders shall pay $4,000 (40%) of the Merger Consideration Dispute Expenses and (ii) the Surviving Corporation shall pay $6,000 (60%) of the Merger Consideration Dispute Expenses. The Surviving Corporation, the Company and Sellers’ Representative shall cooperate with the CPA Firm during its resolution of the 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) relating to amounts set forth in the Initial Closing Statement and Sellers’ Objection and all other items reasonably requested by the CPA Firm in connection therewith. (d) The Initial Closing Statement including the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses, as agreed to (or deemed to have been agreed to) between the Surviving Corporation and Sellers’ Representative or as determined by the CPA Firm, as applicable, shall be conclusive and binding on all of the parties hereto and shall be deemed the “Actual Cash”, “Actual Indebtedness”, “Actual Current Liabilities” and “Actual Seller Transaction Expenses”, respectively, for all purposes herein.

Post-Closing Merger Consideration Adjustment. (a) Within Promptly following the Closing Date (but in any event within ninety (90) days after the Closing Date), I RET, at its expense, shall cause to be prepared and delivered to the Surviving Corporation shall prepare and deliver Shareholders a statement certification (the “Initial "Closing Statement”Certificate") to Sellers’ Representative setting forth prepared by the Auditor. The Closing Certificate shall include: (i) the Surviving Corporation’s determination of Cash as a special purpose report of the close of business on Auditor setting forth the scope and procedures used to prepare and present the financial matters set forth in the Closing Date (the “Closing Date Cash”), Certificate; and (ii) all Indebtedness a calculation and comparison of (A) the Estimated Merger Consideration as set forth in the calculation prepared and agreed to by IRET and the Company as of the close Closing Date, and (B) the Merger Consideration calculated by the Auditor in accordance with this Section 2.16 and Schedule 2.16 , including the Parties' methodology in calculating the Estimated Merger Consideration set forth therein or therewith (the "Merger Consideration Calculation"). Any difference between the Estimated Merger Consideration and the Merger Consideration shall be deemed the "Merger Consideration Adjustment ." In the event that: (1) the Estimated Merger Consideration is greater than the Merger Consideration, the Shareholders, on a pro-rata basis in accordance with their respective pre-Closing ownership interest(s) in the Company, hereby authorize IRET to deduct their pro-rata share of the Merger Consideration Adjustment from future dividend payments to such Shareholder until the Merger Consideration Adjustment amount is satisfied. IRET shall not have the right or authorization to deduct any amount from a dividend due to a Shareholder in excess of the Shareholder's pro-rata amount of the Merger Consideration Adjustment; or (2) the Estimated Merger Consideration is less than the Merger Consideration, IRET shall remit in cash to the Shareholders, on a pro-rata basis in accordance with their respective pre-Merger ownership interest(s) in the Company, the amount of the Merger Consideration Adjustment. All amounts owed by IRET to the Shareholders shall be paid by certified or bank cashier's check or by wire transfer of immediately available funds within five (5) business on days of the (i) end of the Response Period, in the event none of the Shareholders object to the Closing Date Certificate within the Response Period, or (ii) receipt of the “Closing Date Indebtedness”)Independent Accountant's decision with respect to and in the event of a dispute. The Auditor's calculation and comparison shall indicate whether the Merger Consideration Adjustment is due (i) to the Shareholders, or (ii) IRET; and (iii) Current Liabilities as copies of the close of business on all supplementary documents, work papers and other data relating to the Closing Date (the “Closing Date Current Liabilities”), Certificate; and (iv) such other supplementary evidence as the Seller Transaction Expenses Shareholders may require either prior to or after delivery of the Closing Certificate. (b) In connection with the “preparation of the Merger Consideration Calculation and all other matters arising under the Closing Date Seller Transaction Expenses”Certificate, IRET and the Merger Subsidiary shall afford the Shareholders and their representatives complete access to the books, records, personnel and facilities of or pertaining to the Company and permit the Auditor review of such information as is necessary or desirable to review the Merger Consideration Calculation and all other statements arising under the Closing Certificate. (c) The calculation and form of the Estimated Merger Consideration and the Merger Consideration Calculation shall be in the form set forth in Schedule 2.16, with supporting schedules attached. The Merger Consideration Calculation shall be prepared by the Auditor from the consolidated audited financial statements of the Company and its subsidiary dated January 31, 2003 (resulting from the post-Closing Audit described in Section 11.7 of this Agreement). The Estimated Merger Consideration and the Merger Consideration Calculation made, respectively, by the Parties and the Auditor shall depart from the GAAP presentation of any and all consolidated financial statements of the company in the following manner(s): (i) The historical cost GAAP calculation of Rental Real Estate, Real Estate Development in Progress, and the associated Accumulated Depreciation thereto, shall be eliminated. In its place Rental Real Estate shall be given a value of $67,135,000, and Real Estate Development in Progress shall be given a value of $2,760,000. (ii) An asset entitled "Ripley, Tennessee Property" shall be an addition to Merger Consideration and valued at $250,000. (iii) An asset entitled "Pre-Closing Lakeville Property Improvements" shall be an addition to Merger Consideration and valued at $52,945. (iv) The GAAP calculation of the asset for Unbilled Real Estate Taxes shall be eliminated. In its place, an addition to Merger Consideration shall be calculated for Unbilled Real Estate Taxes for all such Taxes not yet billed for the actual amounts that have accrued, but have not been paid by the tenants, for the month of January, 2003 and any month in the calendar year 2002. For purposes of this calculation, the month of January shall be the amount of Real Estate Taxes that would be paid by the tenant for the month of January, 2003 and the unpaid months of 2002 under the applicable Leased Real Estate lease. (v) the Surviving Corporation’s The historical cost GAAP calculation of furniture, fixtures and equipment (excluding transportation equipment), and associated depreciation, for the Merger Consideration. The Initial Closing Statement Company (including the Closing Date Cashexcluding Westlake Liquors, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction ExpensesInc.) shall be prepared eliminated. In its place, such furniture, fixtures and calculated equipment shall be an addition to Merger Consideration and valued at $300,000. (vi) The historical cost GAAP calculation of transportation equipment (autos), and associated depreciation, shall be eliminated. In its place, such transportation equipment shall be an addition to Merger Consideration and valued at $50,175. (vii) The historical cost GAAP calculation of furniture, fixtures and equipment and associated accumulated depreciation, for Westlake Liquors, Inc. shall be eliminated. In its place such furniture, fixtures and equipment shall be an addition to Merger Consideration and valued at $50,000. (viii) A non-GAAP accrual of mortgage interest that will be payable by the Surviving Corporation in accordance February, 2003, with respect to mortgages on the Owned Real Estate shall be a subtraction from Merger Consideration. (ix) The GAAP amounts computed for Accrued Real Property Taxes shall be eliminated. In its place, an accrual of one-twelfth (and1/12th) of the aggregate Real Estate Taxes that will be payable by the Surviving Corporation in May and October, 2003 shall be a subtraction from Merger Consideration. (x) The amount of $138,000 for broker fees (described in Section 3.25), to the extent not inconsistent with GAAPaccrued under GAAP in the January 31, the past practice 2003, consolidated audited financial statements of the Company) or as provided in the definitions of this Agreement. If the Surviving Corporation does not deliver the Initial Closing Statement to Sellers’ Representative within one hundred twenty (120) days following the Closing Date, then, at the election of Sellers’ Representative in its sole discretion, either (A) the Estimated Cash, Estimated Indebtedness, Estimated Current Liabilities and Estimated Seller Transaction Expenses shall be deemed subtracted from Merger Consideration. Notwithstanding the Actual Cashforegoing, Actual Indebtednessif such amount is or has been paid on or before January 31, Actual Current Liabilities and Actual Seller Transaction Expenses and 2003, no subtraction shall be considered final for all purposes hereunder or (B) Sellers’ Representative shall retain (with the cost borne as set forth in Section 1.10(c)) the CPA Firm to review the calculations of Estimated Cash, Estimated Indebtedness, Estimated Current Liabilities and Estimated Seller Transaction Expenses and make any adjustments necessary thereto consistent with the provisions of this Section 1.10, and the determination of the CPA Firm shall be deemed agreed, final and binding on the partiesmade from Merger Consideration. (bxi) Sellers’ RepresentativeNo accrual shall be made for the Auditor's January 31, on behalf 2003, Audit of the StockholdersCompany. (d) If any Shareholder concludes that any matter reported in the Closing Certificate, shall complete its review of including the Initial Closing Statement Merger Consideration Calculation and/or the Merger Consideration Adjustment, is not accurate, such Shareholder shall, within thirty (30) days after the Surviving Corporation’s delivery thereof to Sellers’ Representative. During such review period, the Surviving Corporation shall provide Sellers’ Representative with access to all books and records reasonably requested by Sellers’ Representative to review the Initial Closing Statement (including the calculation and preparation its receipt of the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction ExpensesCertificate (the "Response Period"), any work papers prepared by the Surviving Corporation or its accountants, subject deliver 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 Sellers’ Representative. If Sellers’ Representative objects to the contents of the Initial Closing Statement for any reason, Sellers’ Representative shall, on or before the last day of such 30-day period, so inform the Surviving Corporation in writing (IRET a “Sellers’ Objection”), written statement setting forth a specific description of the basis each of its determination objections and each of any discrepancies believed to exist. If no notice of any objections or discrepancies is given within the Response Period, then the calculations set forth in the Closing Certificate shall be controlling for all purposes of this Agreement, and IRET or the Shareholders, as the case may be, shall be obligated to the other Party in the amount of the Merger Consideration Adjustment set forth in the Closing Certificate. (e) IRET and the adjustments Shareholders shall use good faith efforts to jointly resolve the Initial Closing Statement that Sellers’ Representative believes should properly noticed objections and discrepancies within fifteen (15) days of the receipt of the written statement of objections and discrepancies, which resolution, if achieved, shall be madefully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute. To If IRET and the extent any disagreement therewith is not described in a Sellers’ Objection received by Surviving Corporation on or before Shareholders are unable to resolve the last day of objections and discrepancies to their mutual satisfaction within such 30-fifteen (15) day period, then the items described in the Initial Closing Statement delivered by the Surviving Corporation to Sellers’ Representative matter shall be deemed agreed, final and binding on submitted to a mutually acceptable accounting firm of national reputation (the parties. (c) If Sellers’ Representative timely delivers "Independent Accountants "). In submitting a Sellers’ Objection dispute to the Surviving CorporationIndependent Accountants, and Sellers’ Representative each of the Parties shall concurrently furnish, at its own expense, to the Independent Accountants and the Surviving Corporation are unable to resolve all of their disagreements with respect other Party such documents and information as the Independent Accountants may request. Each Party may also furnish to the proposed adjustments set forth in Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the Sellers’ Objection within thirty (30) days following other Party. Neither Party shall have or conduct any communication, either written or oral, with the Surviving Corporation’s receipt Independent Accountants without the other Party either being present or receiving a concurrent copy of the Sellers’ Objection, then they shall jointly retain the CPA Firm, which, acting as an expert and not as an arbitrator, shall determine, on the basis set forth herein and in accordance with this Section 1.10, and only with respect to those items specifically described in the Sellers’ Objection on which the Surviving Corporation and Sellers’ Representative have not agreed, whether and to what extent, if any, the Merger Consideration requires adjustmentany written communication. The Surviving Corporation Independent Accountants may conduct a conference concerning the objections and Sellers’ Representative shall instruct disagreements between the CPA Firm to deliver its written determination to the Surviving Corporation and Sellers’ Representative no later than 30 days after submitting the matter 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 Sellers’ Representative the amount of the Surviving Corporation’s computation of the Merger Consideration (the “Surviving Corporation’s Position”), and Sellers’ Representative shall specify in writing to the CPA Firm and to the Surviving Corporation the amount of its computation of the Merger Consideration (the “Sellers’ Position”). The CPA Firm’s determination shall be conclusive and binding upon the Surviving Corporation IRET and the StockholdersShareholders, absent fraud or manifest error. In resolving any disputed item, at which conference each Party shall have the CPA Firm may not assign a value right to any disputed item that is greater than the greatest value claimed by the Surviving Corporation or Sellers’ Representative at the time the CPA Firm is retained or less than the smallest value claimed for the item by the Surviving Corporation or Sellers’ Representative at such time. The scope of the dispute(s) to be resolved by the CPA Firm is limited to whether the calculation of Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses were done in a manner consistent with the provisions and definitions of this Agreement and mathematically accurate, and the CPA Firm is not to make any other determination unless jointly requested in writing by Sellers’ Representative and the Surviving Corporation. The fees and disbursements of the CPA Firm (collectively, the “Merger Consideration Dispute Expenses”) shall be borne by (i) Stockholders in that proportion equal present its documents, materials and other evidence (previously provided to a fraction (expressed as a percentage) the numerator of which is equal to Sellers’ Position minus the Merger Consideration determined by the CPA Firm, Independent Accountants and the denominator of which is equal to Sellers’ Position minus Surviving Corporation’s Position other Party), and (ii) the Surviving Corporation in that proportion equal to a fraction (expressed as a percentage) equal to one (1) minus the fraction described in clause (i). For examplehave present its or their advisors, if Sellers’ Position is that the Merger Consideration should be $150,000 and the Surviving Corporation’s Position is that the Merger Consideration should be $100,000, the CPA Firm determines that the Merger Consideration should be $130,000 and the Merger Consideration Dispute Expenses are $10,000, then (i) the Stockholders shall pay $4,000 (40%) of the Merger Consideration Dispute Expenses and (ii) the Surviving Corporation shall pay $6,000 (60%) of the Merger Consideration Dispute Expensesaccountants and/or counsel. The Surviving Corporation, the Company and Sellers’ Representative shall cooperate with the CPA Firm during its resolution of the 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) relating to amounts set forth in the Initial Closing Statement and Sellers’ Objection and all other items reasonably requested by the CPA Firm in connection therewith. (d) The Initial Closing Statement including the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses, as agreed to (or deemed to have been agreed to) between the Surviving Corporation and Sellers’ Representative or as determined by the CPA Firm, as applicable, shall be conclusive and binding on all of the parties hereto and shall be deemed the “Actual Cash”, “Actual Indebtedness”, “Actual Current Liabilities” and “Actual Seller Transaction Expenses”, respectively, for all purposes herein.Independent

Post-Closing Merger Consideration Adjustment. (a) Within ninety The Merger Consideration shall be adjusted on a dollar-for-dollar basis (90the "Adjustment") days after to the extent that the Closing Date, the Surviving Corporation shall prepare and deliver a statement Net Worth (defined below) is less than $66.0 million. Ernst & Young LLP (the “Initial Closing Statement”"Seller's Accountant") to Sellers’ Representative setting forth (i) the Surviving Corporation’s determination of Cash as shall perform by June 15, 2000 a review of the close of business on the Closing Date (the “Closing Date Cash”), (ii) all Indebtedness balance sheet of the Company as of the close of business on the Closing Date (the “"Closing Date Indebtedness”), Balance Sheet") in accordance with the AICPA Statement of Standards for Accounting and Review Services (iiiSSARS) Current Liabilities as of the close of business on the Closing Date (the “Closing Date Current Liabilities”), (iv) the Seller Transaction Expenses (the “Closing Date Seller Transaction Expenses”) #1 and (v) the Surviving Corporation’s calculation of the Merger Considerationissue a report thereon. The Initial Closing Statement (including the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses) Balance Sheet shall be prepared and calculated by the Company in accordance with GAAP (and, to the extent not inconsistent with GAAP, consistent with past practices. Using the past practice financial statements upon which the Seller's Accountant performed the SSARS #1 review, the Seller's Accountant shall also prepare a special procedures report in accordance with Statement of the Company) or as provided Auditing Standards #75 which shall set forth a calculation of "Closing Net Worth" in the definitions of accordance with this Agreement. If the Surviving Corporation does not The Seller's Accountant shall deliver the Initial Closing Statement Net Worth calculation and such computation to Sellers’ both Buyer and the Holders' Representative, and promptly after its receipt of such computation, the Buyer shall give the Holders' Representative within one hundred twenty notice (120the "Adjustment Notice") days following of any proposed Adjustment (the "Proposed Adjustment") unless the Buyer gives a Dispute Notice in accordance with Section 2.14(b). The Buyer shall also be entitled to access to all work papers and all other supporting accounting documents of the Seller's Accountant related to such determinations. In addition, the Buyer and Buyer's accountant, PricewaterhouseCoopers LLP, shall be entitled to ask questions, receive answers and request such other data and information from the Seller's Accountant as shall be reasonable under the circumstances. "Closing Net Worth" means, as of the Closing Date, then, at the election of Sellers’ Representative in its sole discretion, either (A) the Estimated Cash, Estimated Indebtedness, Estimated Current Liabilities and Estimated Seller Transaction Expenses shall be deemed the Actual Cash, Actual Indebtedness, Actual Current Liabilities and Actual Seller Transaction Expenses and shall be considered final for all purposes hereunder or (B) Sellers’ Representative shall retain (with the cost borne as set forth in Section 1.10(c)) the CPA Firm to review the calculations of Estimated Cash, Estimated Indebtedness, Estimated Current Liabilities and Estimated Seller Transaction Expenses and make any adjustments necessary thereto consistent with the provisions of this Section 1.10, and the determination total Assets of the CPA Firm shall be deemed agreed, final and binding on Company minus the parties. (b) Sellers’ Representative, on behalf total Liabilities of the Stockholders, shall complete its review of Company (excluding the Initial Closing Statement within thirty (30) days after the Surviving Corporation’s delivery thereof to Sellers’ RepresentativeTotal Debt and deferred financing fees). During such review period, the Surviving Corporation shall provide Sellers’ Representative with access to all books and records reasonably requested by Sellers’ Representative to review the Initial Closing Statement (including the calculation and preparation of the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses), 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 Sellers’ Representative. If Sellers’ Representative objects to the contents of the Initial Closing Statement for any reason, Sellers’ Representative shall, on or before the last day of such 30-day period, so inform the Surviving Corporation in writing (a “Sellers’ Objection”), setting forth a specific description of the basis of its determination and the adjustments to the Initial Closing Statement that Sellers’ Representative believes should be made. To the extent any disagreement therewith is not described in a Sellers’ Objection received by Surviving Corporation on or before the last day of such 30-day period, then the items described in the Initial Closing Statement delivered by the Surviving Corporation to Sellers’ Representative shall be deemed agreed, final and binding on the parties. (c) If Sellers’ Representative timely delivers a Sellers’ Objection to the Surviving Corporation, and Sellers’ Representative and the Surviving Corporation are unable to resolve all of their disagreements with respect to the proposed adjustments set forth in the Sellers’ Objection within thirty (30) days following the Surviving Corporation’s receipt of the Sellers’ Objection, then they shall jointly retain the CPA Firm, which, acting as an expert and not as an arbitrator, shall determine, on the basis set forth herein and in accordance with this Section 1.10, and only with respect to those items specifically described in the Sellers’ Objection on which the Surviving Corporation and Sellers’ Representative have not agreed, whether and to what extentThe Adjustment, if any, the Merger Consideration requires adjustment. The Surviving Corporation and Sellers’ Representative shall instruct the CPA Firm to deliver its written determination to the Surviving Corporation and Sellers’ Representative no later than 30 days after submitting the matter 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 Sellers’ Representative the amount of the Surviving Corporation’s computation of the Merger Consideration (the “Surviving Corporation’s Position”), and Sellers’ Representative shall specify in writing to the CPA Firm and to the Surviving Corporation the amount of its computation of the Merger Consideration (the “Sellers’ Position”). The CPA Firm’s determination shall be conclusive and binding upon the Surviving Corporation and the Stockholders, absent fraud or manifest error. In resolving any disputed item, the CPA Firm may not assign a value to any disputed item that is greater than the greatest value claimed by the Surviving Corporation or Sellers’ Representative at the time the CPA Firm is retained or less than the smallest value claimed for the item by the Surviving Corporation or Sellers’ Representative at such time. The scope of the dispute(s) to be resolved by the CPA Firm is limited to whether the calculation of Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses were done in a manner consistent with the provisions and definitions of this Agreement and mathematically accurate, and the CPA Firm is not to make any other determination unless jointly requested in writing by Sellers’ Representative and the Surviving Corporation. The fees and disbursements of the CPA Firm (collectively, the “Merger Consideration Dispute Expenses”) shall be borne by (i) Stockholders in that proportion equal to a fraction (expressed as a percentage) the numerator of which is equal to Sellers’ Position minus the Merger Consideration determined by the CPA Firm, and the denominator of which is equal to Sellers’ Position minus Surviving Corporation’s Position and (ii) the Surviving Corporation in that proportion equal to a fraction (expressed as a percentage) equal to one (1) minus the fraction described in clause (i). For example, if Sellers’ Position is that the Merger Consideration should be $150,000 and the Surviving Corporation’s Position is that the Merger Consideration should be $100,000, the CPA Firm determines that the Merger Consideration should be $130,000 and the Merger Consideration Dispute Expenses are $10,000, then (i) the Stockholders shall pay $4,000 (40%) of the Merger Consideration Dispute Expenses and (ii) the Surviving Corporation shall pay $6,000 (60%) of the Merger Consideration Dispute Expenses. The Surviving Corporation, the Company and Sellers’ Representative shall cooperate with the CPA Firm during its resolution of the 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) relating to amounts set forth in the Initial Closing Statement and Sellers’ Objection and all other items reasonably requested by the CPA Firm in connection therewith. (d) The Initial Closing Statement including earn interest from the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expensesuntil the Settlement Date, as agreed defined below, at a rate equal to (or deemed to have been agreed to) between the Surviving Corporation and Sellers’ Representative or as determined by short-term AFR rate published in the CPA Firm, as applicable, shall be conclusive and binding Wall Street Journal on all of the parties hereto and shall be deemed the “Actual Cash”, “Actual Indebtedness”, “Actual Current Liabilities” and “Actual Seller Transaction Expenses”, respectively, for all purposes hereinClosing Date.

Post-Closing Merger Consideration Adjustment. Following the Closing Date, the Estimated Merger Consideration will be adjusted, if at all, as set forth below: (a) Within Buyer will prepare and deliver to the Representative within ninety (90) days after the Closing Date a statement (the "Closing Statement"), together with reasonable supporting documentation and detail, 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 Statement will be prepared, and Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses will be determined in accordance with the definitions set forth in this Agreement, using the Accounting Principles. The parties hereto agree that the purpose of preparing the Closing Statement and calculating Final 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 (1) Closing Net Working Capital from Estimated Closing Net Working Capital, (2) Closing Cash from Estimated Closing Cash, (3) Closing Indebtedness from Estimated Closing Indebtedness and (4) Transaction Expenses from Estimated Transaction Expenses, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of calculating Final Merger Consideration than were used in the calculation of Estimated Merger Consideration. If the Buyer fails to deliver to the Representative the Closing Statement within ninety (90) days after the Closing Date, the Surviving Corporation shall prepare and deliver a statement (the “Initial Closing Statement”) to Sellers’ Representative setting forth (i) the Surviving Corporation’s determination of Cash as of the close of business on the Closing Date (the “Closing Date Cash”)may, (ii) all Indebtedness of the Company as of the close of business on the Closing Date (the “Closing Date Indebtedness”), (iii) Current Liabilities as of the close of business on the Closing Date (the “Closing Date Current Liabilities”), (iv) the Seller Transaction Expenses (the “Closing Date Seller Transaction Expenses”) and (v) the Surviving Corporation’s calculation of the Merger Consideration. The Initial Closing Statement (including the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses) shall be prepared and calculated in accordance with GAAP (and, to the extent not inconsistent with GAAP, the past practice of the Company) or as provided in the definitions of this Agreement. If the Surviving Corporation does not deliver the Initial Closing Statement to Sellers’ Representative within one hundred twenty (120) days following the Closing Date, then, at the election of Sellers’ Representative in its sole discretion, either (A) elect to deem that the Estimated Cash, Merger Consideration set forth in the Estimated Indebtedness, Estimated Current Liabilities and Estimated Seller Transaction Expenses shall be deemed Closing Statement constitutes the Actual Cash, Actual Indebtedness, Actual Current Liabilities and Actual Seller Transaction Expenses and shall be considered final Final Merger Consideration for all purposes hereunder or (B) Sellers’ Representative shall retain (with the cost borne as set forth in Section 1.10(c)) the CPA Firm to review the calculations of Estimated Cash, Estimated Indebtedness, Estimated Current Liabilities and Estimated Seller Transaction Expenses and make any adjustments necessary thereto consistent with the provisions of this Section 1.10, and the determination of the CPA Firm shall be deemed agreed, final and binding on the parties1.07. (b) Sellers’ On or prior to the sixtieth (60th) day following Buyer's delivery of 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 Statement. During such 60-day period, and any period of dispute thereafter with respect to such Closing Statement, Buyer will, and will cause the Company and its Subsidiaries to, (i) provide the Representative and its Advisors with reasonable access during normal business 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 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; provided that the Representative and its Advisors shall conduct any such review in a manner as not to interfere unreasonably with the business or operations of Buyer, the Company or their respective Subsidiaries and shall comply with all applicable safety rules and reasonable controls during such access. Any determination set forth on the Closing Statement which is not specifically objected to in the Notice of Disagreement will be deemed accepted by the Representative, on behalf and will be final and binding upon all parties upon delivery of the StockholdersNotice of Disagreement. If the Representative does not deliver to Buyer a Notice of Disagreement within such 60-day period, shall complete its review then the Closing Statement and the Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses will be final and binding upon the parties upon 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 1.07. (c) Following Buyer's receipt of any Notice of Disagreement, the Representative and Buyer will attempt to negotiate in good faith to resolve the disputed matters set forth therein. In the event that the Representative and Buyer fail to agree on any of the Initial Closing Statement Representative's proposed adjustments set forth in the Notice of Disagreement within thirty (30) days after Buyer receives the Surviving Corporation’s delivery thereof to Sellers’ Representative. During such review periodNotice of Disagreement, the Surviving Corporation shall provide Sellers’ Representative with access and Buyer agree to all books appoint Deloitte, or, if such firm is not available, Representative and records reasonably requested by Sellers’ Representative Buyer agree to review the Initial Closing Statement jointly select a nationally recognized accounting firm within forty-five (including the calculation and preparation of the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses), 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 Sellers’ Representative. If Sellers’ Representative objects to the contents of the Initial Closing Statement for any reason, Sellers’ Representative shall, on or before the last day of 45) days immediately following such 30-day periodperiod (Deloitte, so inform the Surviving Corporation in writing (a “Sellers’ Objection”or such other firm jointly selected pursuant to this Section 1.07(c), setting forth the "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 specific description final determination of the basis of its determination and items included in the adjustments Closing Statement (to the Initial Closing Statement that Sellers’ Representative believes should be made. To the extent any disagreement therewith is not described such amounts are in a Sellers’ Objection received by Surviving Corporation on or before the last day of such 30-day period, then the items described in the Initial Closing Statement delivered by the Surviving Corporation to Sellers’ Representative shall be deemed agreed, final and binding on the parties. (cdispute) If Sellers’ Representative timely delivers a Sellers’ Objection to the Surviving Corporation, and Sellers’ Representative and the Surviving Corporation are unable to resolve all of their disagreements with respect to the proposed adjustments set forth in the Sellers’ Objection within thirty (30) days following the Surviving Corporation’s receipt of the Sellers’ Objection, then they shall jointly retain the CPA Firm, which, acting as an expert and not as an arbitrator, shall determine, on the basis set forth herein and solely in accordance with this Section 1.10Agreement. 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 only with respect to those items specifically described in the Sellers’ Objection on which the Surviving Corporation and Sellers’ Representative have not agreedFirm will not, whether and to what extent, if any, the Merger Consideration requires adjustment. The Surviving Corporation and Sellers’ Representative shall instruct the CPA Firm to deliver its written determination to the Surviving Corporation and Sellers’ Representative no later than 30 days after submitting the matter 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 Sellers’ Representative the amount of the Surviving Corporation’s computation of the Merger Consideration (the “Surviving Corporation’s Position”), and Sellers’ Representative shall specify in writing to the CPA Firm and to the Surviving Corporation the amount of its computation of the Merger Consideration (the “Sellers’ Position”). The CPA Firm’s determination shall be conclusive and binding upon the Surviving Corporation and the Stockholders, absent fraud or manifest error. In resolving any disputed item, the CPA Firm may not assign a value to any disputed item that is in dispute greater than the greatest value claimed for such item assigned by Buyer, on the Surviving Corporation one hand, or Sellers’ Representative at the time Representative, on the CPA Firm is retained other hand, or less than the smallest value claimed for such item assigned by Buyer, on the item 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 Surviving Corporation or Sellers’ Representative at such timethat are in accordance with this Agreement (i.e., not on the basis of an independent review); provided that the parties hereto agree that no party shall have any ex parte communications with the Firm. The scope of Closing Statement and the dispute(s) to be resolved by the CPA Firm is limited to whether the calculation of resulting Closing Date Net Working Capital, Closing Cash, Closing Date IndebtednessIndebtedness and Transaction Expenses, Closing Date Current Liabilities in each case, as determined by the Firm in accordance with this Section 1.07(c), will be final and Closing Date Seller Transaction Expenses were done binding on the parties on the date the Firm delivers its final determination in a manner consistent with writing to Buyer and the provisions Representative. The fees, costs and definitions expenses of this Agreement and mathematically accuratethe Firm will be allocated between Buyer, on the one hand, and the CPA Firm is not to make any Representative, on the other determination unless jointly requested hand, in writing by Sellers’ Representative and the Surviving Corporation. The fees and disbursements same proportion that the aggregate amount of the CPA disputed items so submitted to the Firm that is unsuccessfully disputed by such party (collectively, the “Merger Consideration Dispute Expenses”) shall be borne by (i) Stockholders in that proportion equal to a fraction (expressed as a percentage) the numerator of which is equal to Sellers’ Position minus the Merger Consideration finally determined by the CPA Firm, and ) bears to the denominator total amount of which is equal to Sellers’ Position minus Surviving Corporation’s Position and (ii) the Surviving Corporation in that proportion equal to a fraction (expressed as a percentage) equal to one (1) minus the fraction described in clause (i)disputed items submitted. For example, if Sellers’ Position is that 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. Buyer and the Representative shall otherwise pay their own costs and expenses incurred in connection with any such dispute. The determination of Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses by the Firm will be final, conclusive and binding upon the parties hereto and will not be subject to appeal or further review. (d) If the Estimated Merger Consideration should 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 date the Final Merger Consideration is finally determined pursuant to this Section 1.07 (such date, the "Settlement Date") by wire transfer of immediately available funds, the Excess Amount from the Purchase Price Adjustment Escrow Funds. In the event that at such time the Excess Amount is less than the Purchase Price Adjustment Escrow Funds (such shortfall, the "Remaining Purchase Price 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 Purchase Price Adjustment Escrow Funds from the Purchase Price Adjustment Escrow Account to the Representative (or its designee), with all such amounts received by the Representative (or its designee) pursuant to this Section 1.07(d), subject to Section 10.19(b), to be $150,000 paid to the Class A Common Unitholders and the Class B Unitholders, as applicable, in accordance with Section 1.07(e). The Purchase Price Adjustment Escrow Account is Buyer's, Merger Sub's and the Surviving Corporation’s Position is that Company's sole and exclusive source of recovery for any amounts owing to Buyer, Merger Sub or, after the Closing, the Surviving Company under this Agreement (including pursuant to this Section 1.07 with respect to the Purchase Price Adjustment Escrow Funds). (e) If the Final Merger Consideration should be $100,000exceeds the Estimated Merger Consideration (such excess, the CPA Firm determines that the Merger Consideration should be $130,000 and the Merger Consideration Dispute Expenses are $10,000"Adjustment Amount"), then (i) Buyer will, within two (2) Business Days after the Stockholders shall pay $4,000 (40%) Settlement Date, make payment of the Merger Consideration Dispute Expenses lesser of (x) the $6,500,000 and (y) the Adjustment Amount (such amount, the "Paid Adjustment Amount") by wire transfer in immediately available funds to the Representative (or its designee), and (ii) Buyer and the Surviving Corporation shall pay $6,000 (60%) Representative will deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to make payment of the Merger Consideration Dispute Expenses. The Surviving CorporationPurchase Price Adjustment Escrow Funds from the Purchase Price Adjustment Escrow Account, within two (2) Business Days after the Company and Sellers’ Representative shall cooperate with the CPA Firm during its resolution of the 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 accountantsSettlement Date, to the extent permitted by Representative (or its designee), with all such accountants) relating to amounts set forth in the Initial Closing Statement and Sellers’ Objection and all other items reasonably requested received by the CPA Firm in connection therewith. (d) The Initial Closing Statement including the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses, as agreed to Representative (or deemed its designee) pursuant to have been agreed to) between this Section 1.07(e), subject to Section 10.19(b), to be paid to the Surviving Corporation Class A Common Unitholders and Sellers’ Representative or as determined by the CPA FirmClass B Unitholders, as applicable, shall pursuant to Section 1.07(e). (f) When the Final Merger Consideration is finally determined pursuant to Section 1.07(b) or Section 1.07(c), the Representative will in good faith compute or re-compute, as the case may be, (i) the Final Adjusted Merger Consideration, (ii) the Final Per Unit Amount and (iii) the appropriate amount payable to each Class A Common Unitholder and each Class B Unitholder based on the foregoing from the remaining Purchase Price Adjustment Escrow Funds, the Paid Adjustment Amount and the Representative Holdback Amount, taking into account amounts previously received by such Class A Common Unitholders and such Class B Unitholders as Closing Class A Common Unit Payment or Closing Class B Unit Payment, in each case, in accordance with this Agreement. Promptly thereafter, the Representative will notify the Escrow Agent and the Paying Agent, as applicable, of such calculations and the amount that should be conclusive distributed by them to each Class A Common Unitholder and binding on all Class B Unitholder based upon the calculations and re-calculations contemplated by the immediately preceding sentence. For the avoidance of doubt, each Class A Common Unitholder and Class B Unitholder will receive the difference between (x) the amounts payable to such Class A Common Unitholder and Class B Unitholder based upon the calculations and re-calculations contemplated by this Section 1.07(e) and (y) the Closing Class A Common Unit Payment, the Closing Class B Unit Payment or any other post-Closing payments received by such Class A Common Unitholder or such Class B Unitholder, as applicable. The Representative, the Escrow Agent 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 parties hereto calculation of the Final Adjusted Merger Consideration, the Representative determines to retain funds in the Representative Holdback Amount under Section 10.19(b), and shall at any time and from time to time thereafter determines a portion of such funds should be deemed distributed to the “Actual Cash”Class A Common Unitholders and the Class B Unitholders, “Actual Indebtedness”then at each such time, “Actual Current Liabilities” the Representative will in good faith determine the appropriate amounts to be paid to the Class A Common Unitholders or the Class B Unitholders from the Representative Holdback Amount and “Actual Seller Transaction Expenses”will cause such amounts to be paid from the Representative Holdback Amount to the Class A Common Unitholders or the Class B Unitholders. None of the Escrow Agent, respectivelythe Paying Agent, the Surviving Company or Buyer will have any liability or obligation to any Class A Common Unitholder or Class B Unitholder or the Representative for all purposes hereinany distribution made in accordance with the instructions of the Representative pursuant to this Section 1.07(e). (g) Buyer and Merger Sub agree that the adjustments to the Final Merger Consideration and the dispute resolution provisions provided for in this Section 1.07 will be the exclusive remedies for the matters addressed or that could be addressed by this Section 1.07.