Common use of Adjustment to the Merger Consideration Clause in Contracts

Adjustment to the Merger Consideration. (a) The Merger Consideration shall be increased or reduced as set forth in Section 2.12(f) hereof. Any increase or decrease in the Merger Consideration pursuant to this Section 2.12 shall be referred to as a “Merger Consideration Adjustment”. Any payments made in respect of any Merger Consideration Adjustment pursuant to this Section 2.12 shall be treated as an adjustment to the Merger Consideration for all Tax purposes unless otherwise required by any applicable Law. (b) Within ninety (90) days after the Closing Date, PubCo shall prepare and deliver to the Stockholders’ Representative a statement (the “Preliminary Closing Statement”), which sets forth PubCo’s calculation of (i) the Net Working Capital as of 11:59 p.m. Mountain Time on the day immediately preceding the Closing Date (the “Closing Net Working Capital”), (ii) the Cash and Cash Equivalents as of 11:59 p.m. Mountain Time on the day immediately preceding the Closing Date (the “Closing Cash”), (iii) the Indebtedness of the Company and the Company Subsidiaries as of immediately prior to the Closing (the “Closing Indebtedness”), and (iv) the Company Transaction Expenses as of immediately prior to the Closing (the “Closing Company Transaction Expenses”), in each case prepared in accordance with GAAP, and to the extent in accordance with GAAP, the accounting principles, policies, procedures, practices, applications and methodologies used in preparing the Financial Statements, along with reasonable supporting detail to evidence PubCo’s calculations, explanations and assumptions for the calculation of such amounts. (c) The Stockholders’ Representative shall have a period of thirty (30) days after the date it receives the Preliminary Closing Statement from PubCo to deliver to PubCo written notice of the Stockholders’ Representative’s disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement (a “Notice of Disagreement”). During the thirty (30) day period following the Stockholders’ Representative’s receipt of the Preliminary Closing Statement, PubCo shall (i) permit the Stockholders’ Representative and its accountants to consult with the Company and PubCo’s accountants as reasonable, and (ii) provide to the Stockholders’ Representative and its accountants reasonable access during normal business hours and under reasonable circumstances to all relevant books and records and any work papers (including those of PubCo’s accountants subject to the execution of appropriate agreements with PubCo’s accountants) relating to the preparation of the Preliminary Closing Statement. If a Notice of Disagreement is received by PubCo, then the Preliminary Closing Statement (as revised in accordance with clause (A) or (B) below) shall become the Final Closing Statement and become final and binding upon the Parties on the earlier of the date (A) on which the Stockholders’ Representative and PubCo resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and (B) all matters in dispute are finally resolved in writing by the Accounting Firm. During the sixty (60) days following PubCo’s receipt of a Notice of Disagreement, PubCo and the Stockholders’ Representative shall seek in good faith to resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and upon such resolution, the Final Closing Statement shall be prepared in accordance with the agreement of PubCo and the Stockholders’ Representative. (d) If PubCo and the Stockholders’ Representative are unable to resolve the disputed items set forth in the Notice of Disagreement within thirty (30) days following PubCo’s receipt of such Notice of Disagreement (or such longer period as PubCo and the Stockholders’ Representative may mutually agree in writing), following notice of such dispute, such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by, (i) the dispute resolution group of BDO New York, or (ii) in the event such accounting firm is unable or unwilling to take such assignment, the dispute resolution group of a nationally recognized accounting firm mutually agreed upon by PubCo and the Stockholders’ Representative or, if PubCo and the Stockholders’ Representative cannot agree on an accounting firm within sixty (60) days after timely delivery of a Notice of Disagreement, each of PubCo and the Stockholders’ Representative shall select a nationally recognized accounting firm and such two (2) accounting firms shall designate the dispute resolution group of a third nationally recognized accounting firm that neither presently is, nor in the past three (3) years has been, engaged by either Party or any of their respective Affiliates. The “Accounting Firm” means either (x) the dispute resolution group of BDO New York, (y) the accounting firm so agreed to by PubCo and the Stockholders’ Representative, or (z) the third accounting firm so selected by the two (2) accounting firms, in each case in accordance with this Section 2.12(d). PubCo and the Stockholders’ Representative shall submit to the Accounting Firm, as experts and not as arbitrators, for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. PubCo and the Stockholders’ Representative shall instruct the Accounting Firm to select one (1) of its partners experienced in purchase price adjustment disputes to make a final determination of the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Closing Company Transaction Expenses calculated with reference to the items that are in dispute as set forth in the Notice of Disagreement. PubCo and the Stockholders’ Representative shall instruct the Accounting Firm that, in resolving PubCo items in the Notice of Disagreement that are still in dispute and in determining the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Closing Company Transaction Expenses, the Accounting Firm shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by PubCo, on the one hand, or the Stockholders’ Representative, on the other hand, or (B) less than the smallest value for such item assigned by PubCo, on the one hand, or the Stockholders’ Representative, on the other hand, (ii) make its determination based on an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement) and a single written presentation submitted by each of PubCo and the Stockholders’ Representative and a single written response of each of PubCo and the Stockholders’ Representative to each such presentation so submitted (iii) render a final resolution in writing to PubCo and the Stockholders’ Representative (which final resolution shall be requested by PubCo and the Stockholders’ Representative to be delivered not more than thirty (30) days following submission of such disputed matters to the Accounting Firm), which, absent manifest error, shall be final, conclusive and binding on the Parties with respect to the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Closing Company Transaction Expenses, and (iv) provide a written report to PubCo and the Stockholders’ Representative, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between PubCo, on the one hand, and the Equity Holders, on the other hand, based upon the percentage by which the portion of the contested amount not awarded to each of PubCo and the Stockholders’ Representative bears to the amount actually contested by such Party; provided, that any amount owed by the Equity Holders shall be satisfied solely from the Escrow Fund.

Adjustment to the Merger Consideration. (a) The Merger Consideration shall be increased or reduced as set forth in Section 2.12(f2.9(f) hereof. Any increase or decrease in the Merger Consideration pursuant to this Section 2.12 2.9 shall be referred to as a “Merger Consideration Adjustment”. Any payments issuance of stock made in respect of any Merger Consideration Adjustment pursuant to this Section 2.12 2.9 shall be treated as an adjustment to the Merger Consideration for all Tax purposes unless otherwise required by any applicable Law. (b) Within ninety (90) days after the Closing Date, PubCo Parent shall prepare and deliver to the Stockholders’ Representative Majority Stockholder a statement (the “Preliminary Closing Statement”), which sets forth PubCoParent’s calculation of (i) the Net Working Capital as of 11:59 p.m. Mountain Time pm on the day immediately preceding prior to the Closing Date (the “Closing Net Working Capital”), (ii) the Cash and Cash Equivalents held by the Company as of 11:59 p.m. Mountain the Effective Time on the day immediately preceding the Closing Date (the “Closing Cash”), and (iii) the aggregate amount of all Indebtedness of the Company and the Company Subsidiaries as of immediately prior to the Closing Effective Time (the “Closing Indebtedness”), and (iv) the Company Transaction Expenses as of immediately prior to the Closing (the “Closing Company Transaction Expenses”), in each case prepared in accordance with GAAP, and to the extent in accordance with GAAP, the accounting principles, policies, procedures, practices, applications and methodologies used in preparing the Financial Statements, along with reasonable supporting detail to evidence PubCoParent’s calculations, explanations and assumptions for the calculation of such amounts. (c) The Stockholders’ Representative Majority Stockholder shall have a period of thirty (30) days after the date it receives the Preliminary Closing Statement from PubCo Parent to deliver to PubCo Parent written notice of the Stockholders’ RepresentativeMajority Stockholder’s disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement (a “”Notice of Disagreement”). During the thirty (30) day period following the Stockholders’ RepresentativeMajority Stockholder’s receipt of the Preliminary Closing Statement, PubCo Parent shall (i) permit the Stockholders’ Representative Majority Stockholder and its accountants to consult with the Company and PubCoParent’s accountants as reasonable, and (ii) provide to the Stockholders’ Representative Majority Stockholder and its accountants reasonable access during normal business hours and under reasonable circumstances to all relevant books and records and any work papers (including those of PubCo’s accountants subject to the execution of appropriate agreements with PubCo’s accountants) relating to the preparation of the Preliminary Closing Statement. If a Notice of Disagreement is received by PubCoParent, then the Preliminary Closing Statement (as revised in accordance with clause (A) or (B) below) shall become the Final Closing Statement and become final and binding upon the Parties on the earlier of the date (A) on which the Stockholders’ Representative Majority Stockholder and PubCo Parent resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and (B) all matters in dispute are finally resolved in writing by the Accounting Firm. During the sixty (60) days following PubCoParent’s receipt of a Notice of Disagreement, PubCo Parent and the Stockholders’ Representative Majority Stockholder shall seek in good faith to resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and upon such resolution, the Final Closing Statement shall be prepared in accordance with the agreement of PubCo Parent and the Stockholders’ RepresentativeMajority Stockholder. (d) If PubCo Parent and the Stockholders’ Representative Majority Stockholder are unable to resolve the disputed items set forth in the Notice of Disagreement within thirty fifteen (3015) days following PubCoParent’s receipt of such Notice of Disagreement (or such longer period as PubCo Parent and the Stockholders’ Representative Majority Stockholder may mutually agree in writing), following notice of such dispute, such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by, (i) the dispute resolution group of BDO New York, or (ii) in the event such accounting firm is unable or unwilling to take such assignment, the dispute resolution group of a nationally recognized accounting firm mutually agreed upon by PubCo Parent and the Stockholders’ Representative Majority Stockholder or, if PubCo Parent and the Stockholders’ Representative Majority Stockholder cannot agree on an accounting firm within sixty (60) days after timely delivery of a Notice of Disagreement, each of PubCo Parent and the Stockholders’ Representative Majority Stockholder shall select a nationally recognized accounting firm and such two (2) accounting firms shall designate the dispute resolution group of a third nationally recognized accounting firm that neither presently is, nor in the past three (3) years has been, engaged by either Party or any of their respective Affiliates. The “Accounting Firm” means either (x) the dispute resolution group of BDO New York, (y) the accounting firm so agreed to by PubCo Parent and the Stockholders’ RepresentativeMajority Stockholder, or (z) the dispute resolution group of a third accounting firm so selected by the two (2) accounting firms, in each case in accordance with this Section 2.12(d)acting as an expert and not an arbitrator, is hereinafter referred to as the “Accounting Firm”. PubCo Parent and the Stockholders’ Representative Majority Stockholder shall submit to the Accounting Firm, as experts and not as arbitrators, for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. PubCo Parent and the Stockholders’ Representative Majority Stockholder shall instruct the Accounting Firm to select one (1) of its partners experienced in purchase price adjustment disputes to make a final determination of the Closing Net Working Capital, Closing Cash, Cash and Closing Indebtedness and Closing Company Transaction Expenses calculated with reference to the items that are in dispute as set forth in the Notice of Disagreement. PubCo Parent and the Stockholders’ Representative Majority Stockholder shall instruct the Accounting Firm that, in resolving PubCo Parent items in the Notice of Disagreement that are still in dispute and in determining the Closing Net Working Capital, Closing Cash, Closing Indebtedness Cash and Closing Company Transaction ExpensesIndebtedness, the Accounting Firm shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by PubCoParent, on the one hand, or the Stockholders’ RepresentativeMajority Stockholder, on the other hand, or (B) less than the smallest value for such item assigned by PubCoParent, on the one hand, or the Stockholders’ RepresentativeMajority Stockholder, on the other hand, (ii) make its determination based on an independent a review (which will be in accordance with the guidelines and procedures set forth in this Agreement) and a single written presentation submitted by each of PubCo Parent and the Stockholders’ Representative Majority Stockholder and a single written response of each of PubCo Parent and the Stockholders’ Representative Majority Stockholder to each such presentation so submitted (iii) render a final resolution in writing to PubCo Parent and the Stockholders’ Representative Majority Stockholder (which final resolution shall be requested by PubCo Parent and the Stockholders’ Representative Majority Stockholder to be delivered not more than thirty (30) days following submission of such disputed matters to the Accounting Firm), which, absent manifest error, shall be final, conclusive and binding on the Parties with respect to the Closing Net Working Capital, Closing Cash, Closing Indebtedness Cash and Closing Company Transaction ExpensesIndebtedness, and (iv) provide a written report to PubCo Parent and the Stockholders’ RepresentativeMajority Stockholder, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between PubCopaid by the Company. (e) The Preliminary Closing Statement (as adjusted by the agreement of the Parties or at the direction of the Accounting Firm, on as applicable) shall be deemed final for the one hand, and the Equity Holders, on the other hand, based purposes of this Section 2.9 upon the percentage by which the portion earliest of the contested amount not awarded to each (i) failure of PubCo and the Stockholders’ Representative bears to notify Parent of a dispute within thirty (30) days after the amount actually contested Majority Stockholder receives the Preliminary Closing Statement, (ii) resolution of all disputes, pursuant to Section 2.9(c), by such Party; providedParent and the Majority Stockholder, that any amount owed and (iii) resolution of all disputes, pursuant to Section 2.9(d), by the Equity Holders Accounting Firm. (f) Within five (5) Business Days following the determination of the Final Closing Statement, the Final Closing Net Working Capital, Final Closing Cash, and Final Closing Indebtedness in accordance with Section 2.9(c) or Section 2.9(d), as applicable: (i) if there is a Final Deficit, then Parent shall be satisfied entitled to claim solely from the Working Capital Escrow Fund the number of whole shares of Parent Common Stock equal to the lesser of (A) the remaining amount of the Working Capital Escrow Fund, and (B) the Final Deficit, and Parent and the Majority Stockholder shall promptly deliver a joint written instruction to the Escrow Agent instructing it to release such amount to Parent for cancellation; and (ii) if there is a Final Surplus, then Parent shall deposit with the Exchange Agent, on behalf of the Company Stockholders, an amount of Parent Common Stock (rounded to the nearest whole number) equal to such Final Surplus multiplied by the aggregate Pro Rata Percentages of the Company Stockholders, which the Exchange Agent shall distribute to the Company Stockholders in accordance with their respective Pro Rata Percentages. (g) If any shares of Parent Common Stock remain in the Working Capital Escrow Fund after giving effect to the payments in Section 2.9(f), Parent and the Majority Stockholder shall promptly deliver a joint written instruction to the Escrow Agent instructing it to release to the Exchange Agent, on behalf of the Company Stockholders, the number whole shares of Parent Common Stock equal to such remaining Working Capital Escrow Fund multiplied by the aggregate Pro Rata Percentages of the Company Stockholders, which the Exchange Agent shall distribute to the Company Stockholders in accordance with their respective Pro Rata Percentages. (h) The Indemnification Escrow Amount and the Working Capital Escrow Amount to be deposited in the Indemnification Escrow Fund and the Working Capital Escrow Fund, respectively, shall be issued in the names of the Company Stockholders (in restricted book entry form) in accordance with their respective Pro Rata Percentages. The Indemnification Escrow Amount and the Working Capital Escrow Amount will appear as issued and outstanding on Parent’s balance sheet and will be legally outstanding under the DGCL. Any dividends, distributions or other income paid on or otherwise accruing to any Indemnification Escrow Amount and the Working Capital Escrow Amount shall be distributed by Parent to the Company Stockholders on a current basis in accordance with their respective Pro Rata Percentages and Parent’s Organizational Documents. While the Indemnification Escrow Amount and the Working Capital Escrow Amount are held in the Indemnification Escrow Fund and the Working Capital Escrow Fund, respectively, each Company Stockholder shall be entitled to vote all of its respective shares in the Indemnification Escrow Amount and the Working Capital Escrow Amount that have been issued in such Company Stockholder’s name. For U.S. federal, state and local income tax purposes and foreign tax purposes, the parties shall treat the Indemnification Escrow Amount and the Working Capital Escrow Amount, and all dividends, earnings or income, if any, earned with respect thereto while held by the Escrow Agent, as owned by the respective Company Stockholders until such time as they are released and the Company Stockholders shall be responsible for and the taxpayers on all Taxes due on all such dividends, earnings, interest or income earned, if any, with respect to the Indemnification Escrow Fund and the Working Capital Escrow Fund.

Adjustment to the Merger Consideration. (a) The Merger Consideration shall be increased or reduced as set forth in Section 2.12(f2.8(f) hereof. Any increase or decrease in the Merger Consideration pursuant to this Section 2.12 2.8 shall be referred to as a “Merger Consideration Adjustment”. Any payments made in respect of any Merger Consideration Adjustment pursuant to this Section 2.12 shall be treated as an adjustment to the Merger Consideration for all Tax purposes unless otherwise required by any applicable Law. (b) Within ninety (90) days after the Closing Date, PubCo Buyer shall prepare and deliver to the Stockholders’ Representative a statement (the “Preliminary Closing Statement”), which sets forth PubCoBuyer’s calculation of (i) the Net Working Capital as of 11:59 p.m. Mountain Time on the day immediately preceding the Closing Date (the “Closing Net Working Capital”)) and the Net Working Capital Adjustment Amount based thereon, (ii) the Cash and Cash Equivalents as of 11:59 p.m. Mountain Time on the day immediately preceding the Closing Date (the “Closing Cash”), (iii) the Indebtedness of the Company and the Company Subsidiaries as of immediately prior to the Closing Group Companies (the “Closing Indebtedness”), and (iv) the Company Transaction Expenses as of immediately prior to the Closing (the “Closing Company Transaction Expenses”), (v) the Audit Support Amount (the “Closing Audit Support Amount”) and (vi) the amount of the Merger Consideration based thereon, in each case prepared (x) as of immediately preceding the Closing and (y) in accordance with GAAP, and to the extent in accordance with GAAP, the accounting principles, policies, procedures, practices, judgments, applications and methodologies used in preparing the Financial Statements, along with reasonable supporting detail to evidence PubCothe Buyer’s calculationscalculations of such amounts. For the avoidance of doubt, explanations the accounting principles, policies, procedures, practices, judgments, applications and assumptions for methodologies used in preparing the Financial Statements shall be the only accounting principles, policies, procedures, practices, judgments, applications or methodologies used or relied upon in the preparation of the Preliminary Closing Statement, the calculation of such amountseach of Closing Net Working Capital, Closing Cash, Closing Indebtedness, Closing Company Transaction Expenses, and the Closing Audit Support Amount and no other accounting principles, policies, procedures, practices, judgments, applications or methodologies shall be introduced by any party hereto or the Accounting Firm. (c) The Stockholders’ Representative shall have a period of thirty (30) days after the date it receives the Preliminary Closing Statement from PubCo Buyer to deliver to PubCo Buyer written notice of the Stockholders’ Representative’s disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement (a “Notice of Disagreement”). During the thirty (30) day period following the Stockholders’ Representative’s receipt At all times prior to a determination of the Preliminary Final Closing Statement, PubCo the Final Closing Net Working Capital, Final Closing Cash, Final Closing Indebtedness, Final Closing Company Transaction Expenses, the Final Closing Audit Support Amount and Final Merger Consideration Amount in accordance with Section 2.8(c) or Section 2.8(d), as applicable, Buyer shall (i) permit the Stockholders’ Representative and its accountants to consult with the Company Company, Buyer, and PubCotheir respective accountants (subject to such accountants’ consent) at reasonable times, upon reasonable prior notice and without unduly interfering with the Company’s accountants as reasonableor Buyer’s business, and (ii) provide to the Stockholders’ Representative and its accountants reasonable access during normal business hours and reasonable hours, upon reasonable prior notice, under reasonable circumstances and without unduly interfering with Buyer’s or its Affiliates’ business to all relevant books and records and any work papers (including those of PubCo’s accountants subject to the execution of appropriate agreements with PubCo’s accountants) relating to the preparation of the Preliminary Closing Statement. If a Notice of Disagreement is received by PubCoBuyer, then the Preliminary Closing Statement (as revised in accordance with clause (A) or (B) below) shall become the Final Closing Statement and become final and binding upon the Parties on the earlier of the date (A) on which the Stockholders’ Representative and PubCo Buyer resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and (B) all matters in dispute are finally resolved in writing by the Accounting Firm. During the sixty thirty (6030) days following PubCoBuyer’s receipt of a Notice of Disagreement, PubCo Buyer and the Stockholders’ Representative shall seek in good faith to resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and upon such resolution, the Final Closing Statement shall be prepared in accordance with the agreement of PubCo Buyer and the Stockholders’ Representative. (d) If PubCo Buyer and the Stockholders’ Representative are unable to resolve the disputed items set forth in the Notice of Disagreement within thirty forty-five (3045) days following PubCoBuyer’s receipt of such Notice of Disagreement (or such longer period as PubCo Buyer and the Stockholders’ Representative may mutually agree in writing), following notice of such dispute, such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by, (i) the dispute resolution group of BDO New YorkDeloitte & Touche LLP, or (ii) in the event such accounting firm is unable or unwilling to take such assignment, the dispute resolution group of a nationally recognized accounting firm mutually agreed upon by PubCo Buyer and the Stockholders’ Representative or, if PubCo Buyer and the Stockholders’ Representative cannot agree on an accounting firm within sixty thirty (6030) days after timely delivery of a Notice of Disagreement, each of PubCo Buyer and the Stockholders’ Representative shall select a nationally recognized accounting firm and such two (2) accounting firms shall designate the dispute resolution group of a third nationally recognized accounting firm that neither presently is, nor in the past three (3) years has been, engaged by either Party or any of their respective Affiliates. The “Accounting Firm” means either (x) the dispute resolution group of BDO New YorkDeloitte & Touche LLP, (y) the accounting firm so agreed to by PubCo Buyer and the Stockholders’ Representative, or (z) the third accounting firm so selected by the two (2) accounting firms, in each case in accordance with this Section 2.12(d)is hereinafter referred to as the “Accounting Firm”. PubCo Buyer and the Stockholders’ Representative shall submit to the Accounting Firm, as experts and not as arbitrators, Firm for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. PubCo Buyer and the Stockholders’ Representative shall instruct the Accounting Firm to select one (1) of its partners experienced in purchase price adjustment disputes to make a final determination of the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Indebtedness, Closing Company Transaction Expenses Expenses, Closing Audit Support Amount and the amount of the Merger Consideration based thereon, in each case, calculated with reference to the items that are in dispute as set forth in the Notice of Disagreement. PubCo Buyer and the Stockholders’ Representative shall instruct the Accounting Firm that, in resolving PubCo the items in the Notice of Disagreement that are still in dispute and in determining the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Indebtedness, Closing Company Transaction Expenses, and Closing Audit Support Amount, in each case, the Accounting Firm shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by PubCoBuyer, on the one hand, or the Stockholders’ Representative, on the other hand, or (B) less than the smallest value for such item assigned by PubCoBuyer, on the one hand, or the Stockholders’ Representative, on the other hand, (ii) make its determination based on an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement) and and, at the Accounting Firm’s discretion, a single written presentation submitted by one-day conference concerning the dispute, at which conference each of PubCo Buyer and the Stockholders’ Representative shall have the right to present their respective positions with respect to the dispute and a single written response of each of PubCo have present their respective advisors, counsel and the Stockholders’ Representative to each such presentation so submitted accountants, (iii) render a final resolution in writing to PubCo Buyer and the Stockholders’ Representative (which final resolution shall be requested by PubCo Buyer and the Stockholders’ Representative to be delivered not more than thirty (30) days following submission of such disputed matters to the Accounting Firm), which, absent manifest error, shall be final, conclusive and binding on the Parties with respect to the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Indebtedness, Closing Company Transaction Expenses, Closing Audit Support Amount and the amount of the Merger Consideration based thereon, and (iv) provide a written report to PubCo Buyer and the Stockholders’ Representative, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between PubCoBuyer, on the one hand, and the Equity Holders, on the other hand, based upon the percentage by which the portion of the contested amount not awarded to each of PubCo Buyer and the Stockholders’ Representative bears to the amount actually contested by such Party; provided. (e) The Preliminary Closing Statement (as adjusted by the agreement of the Parties or at the direction of the Accounting Firm, that as applicable) shall be deemed final for the purposes of this Section 2.8 upon the earliest of the (i) failure of the Stockholders’ Representative to notify Buyer of a dispute within thirty (30) days after the Stockholders’ Representative receives the Preliminary Closing Statement, (i) resolution of all disputes, pursuant to Section 2.8(c), by Buyer and the Stockholders’ Representative, and (ii) resolution of all disputes, pursuant to Section 2.8(d), by the Accounting Firm. (f) Within five (5) Business Days following the determination of the Final Closing Statement in accordance with Section 2.8(c) or Section 2.8(d), as applicable: (i) if the Estimated Merger Consideration Amount exceeds the Final Merger Consideration Amount, then Buyer shall be entitled to claim from the Adjustment Escrow Fund an amount equal to such excess (and if the Adjustment Escrow Fund is insufficient to cover such adjustment in full, Buyer shall be entitled to claim such shortfall from the General Indemnity Escrow Fund, and Buyer and the Stockholders’ Representative will promptly deliver a joint written instruction to the Escrow Agent instructing it to release (A) to Buyer or its designee the amount of such excess from the Adjustment Escrow Fund (and the General Indemnity Escrow Fund, as applicable) and (B) if any amount owed remains in the Adjustment Escrow Fund after giving effect to the foregoing clause (A), (x) to the Company an amount as directed by the Equity Holders Stockholders’ Representative, not to exceed the amount remaining in the Adjustment Escrow Fund, which the Company shall distribute to the SAR Participants in accordance with instructions provided by the Stockholders’ Representative, (y) to the Paying Agent from the remaining amount in the Adjustment Escrow Fund, if any, the amount required to satisfy the payments to be made to holders of the Preferred Stock pursuant to Sections 2.2(b)(i) through (v), for further distribution to the holders of Preferred Stock in the order of priority set forth in Sections 2.2(b)(i) through (v); and (C) thereafter, only to the extent a portion of Adjustment Escrow Fund remains unpaid after giving effect to the foregoing clauses (x) and (y), (1) pay to the Paying Agent an amount equal to the remainder of the Adjustment Escrow Fund multiplied by the aggregate Pro Rata Percentages of the Stockholders, for further distribution to the Stockholders in accordance with their respective Pro Rata Percentages, and (2) pay to the Company an amount equal to the remainder of the Adjustment Escrow Fund, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (ii) if the Final Merger Consideration Amount exceeds the Estimated Merger Consideration Amount (such excess, the “Upward Adjustment”), then Buyer shall: (A) first, pay to the Company an amount as directed by the Stockholders’ Representative (not to exceed the amount of the Upward Adjustment), which the Company shall distribute through the Company’s payroll system to the SAR Participants, less applicable withholding Tax, in accordance with instructions provided by the Stockholders’ Representative; (B) then, pay to the Paying Agent from the remaining amount of the Upward Adjustment, if any, the amount required to satisfy the payments to be made to holders of the Preferred Stock pursuant to Sections 2.2(b)(i) through (v), for further distribution to the holders of Preferred Stock in the order of priority set forth in Sections 2.2(b)(i) through (v); and (C) thereafter, only to the extent a portion of such Upward Adjustment remains unpaid after giving effect to the foregoing clauses (A) and (B), (x) pay to the Paying Agent an amount equal to the remainder of such Upward Adjustment multiplied by the aggregate Pro Rata Percentages of the Stockholders, for further distribution to the Stockholders in accordance with their respective Pro Rata Percentages, and (y) pay to the Company an amount equal to the remainder of such Upward Adjustment, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (g) All payments required under this Section 2.8 shall be satisfied solely from made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing by the Escrow Fundrecipient(s). (h) Any payment that is to be made pursuant to Section 2.8(f) to an Equity Holder and that is attributable to an Option or to an SAR Participant shall be paid to the Company for disbursal through the Company’s payroll system and treated for Tax purposes as a payment, when and if made, of compensation for services. Accordingly Buyer shall reduce, or shall cause the Company to reduce, each such payment by the amount of any required federal, foreign, provincial, state, or local withholding Taxes payable by the Company with respect to such payment. Buyer shall pay or shall cause the Company to pay such withholding Taxes to the applicable Governmental Entities as required by Law. (i) It is expressly understood and agreed that Buyer’s payment of the Merger Consideration Adjustment, if any, (i) to the Company in respect of the portion of the Merger Consideration Adjustment to be paid to the Option Holders and payment thereof to the Option Holders by the Company and (ii) to the Paying Agent in respect of the portion of the Merger Consideration Adjustment to be paid to the other Equity Holders, shall be in full satisfaction of Buyer’s obligation with respect to such amounts, and, once paid in accordance with the terms of this Agreement, Buyer and its Affiliates shall have no liability to the Stockholders’ Representative, any Equity Holder or any other Person for any amounts in respect of the same.

Adjustment to the Merger Consideration. (a) The Merger Consideration shall be increased or reduced as set forth in Section 2.12(f‎Section 2.8(f) hereof. Any increase or decrease in the Merger Consideration pursuant to this Section 2.12 ‎Section 2.8 shall be referred to as a “Merger Consideration Adjustment”. Any payments made in respect of any Merger Consideration Adjustment pursuant to this Section 2.12 shall be treated as an adjustment to the Merger Consideration for all Tax purposes unless otherwise required by any applicable Law. (b) Within ninety one-hundred and ten (90110) days after the Closing Date, PubCo Buyer shall prepare and deliver to the Stockholders’ Representative a statement (the “Preliminary Closing Statement”), which sets forth PubCoBuyer’s calculation of (i) the Net Working Capital as of 11:59 p.m. Mountain Time on the day immediately preceding the Closing Date (the “Closing Net Working Capital”)) and the Net Working Capital Adjustment Amount based thereon, (ii) the Cash and Cash Equivalents as of 11:59 p.m. Mountain Time on the day immediately preceding the Closing Date (the “Closing Cash”), (iii) the Indebtedness of the Company and the Company Subsidiaries as of immediately prior to the Closing Group Companies (the “Closing Indebtedness”), and (iv) the Company Transaction Expenses as of immediately prior to the Closing (the “Closing Company Transaction Expenses”), in the case of each of sub clauses (i)–(iv), as of 11:59pm Eastern Time on the day immediately prior to the Closing Date (it being understood and agreed that no additional Indebtedness or Company Transaction Expenses shall be incurred between 11:59pm Eastern Time on the day immediately prior to the Closing Date and the Closing, except to the extent such amounts are included in the amount of Closing Indebtedness or Closing Company Transaction Expenses, as the case may be, set forth in the Preliminary Closing Statement), and (v) the amount of the Merger Consideration based thereon, in each case prepared (x) as of immediately preceding the Closing and (y) in accordance with GAAP, and based upon the Accounting Principles along with reasonable supporting detail to evidence the extent in accordance with GAAPBuyer’s calculations of such amounts. For the avoidance of doubt, the Accounting Principles and the Net Working Capital Example shall be the only accounting principles, policies, procedures, practices, judgments, applications and or methodologies used or relied upon in preparing the Financial Statementspreparation of the Preliminary Closing Statement, along with reasonable supporting detail to evidence PubCo’s calculations, explanations and assumptions for the calculation of such amountseach of Closing Net Working Capital, Closing Cash, Closing Indebtedness and the Closing Company Transaction Expenses and no other accounting principles, policies, procedures, practices, judgments, applications or methodologies shall be introduced by any party hereto or the Accounting Firm. (c) The Stockholders’ Representative shall have a period of thirty (30) days after the date delivery to it receives of the Preliminary Closing Statement from PubCo to deliver to PubCo Buyer written notice of the Stockholders’ Representative’s disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement together with the Stockholders’ Representative’s proposed amount for the item that is the subject of such disagreement and (if reasonably available) reasonable supporting detail to evidence the Stockholders’ calculations of such amount (a “Notice of Disagreement”). During the thirty (30) day period following the Stockholders’ Representative’s receipt At all times prior to a determination of the Preliminary Final Closing Statement, PubCo the Final Closing Net Working Capital, Final Closing Cash, Final Closing Indebtedness, Final Closing Company Transaction Expenses and Final Merger Consideration Amount in accordance with ‎Section 2.8(c) or ‎Section 2.8(d), as applicable, Buyer shall (i) permit the Stockholders’ Representative and its accountants to consult with the Company Company, Buyer and PubCotheir respective accountants (subject to such accountants’ consent) at reasonable times, upon reasonable prior notice and without unduly interfering with the Company’s accountants as reasonableor Buyer’s business, and (ii) provide to the Stockholders’ Representative and its accountants reasonable access during normal business hours and reasonable hours, upon reasonable prior notice, under reasonable circumstances and without unduly interfering with Buyer’s or its Affiliates’ business to all relevant books and records and any work papers (including those of PubCo’s accountants subject to the execution of appropriate agreements with PubCo’s accountants) relating to the preparation of the Preliminary Closing Statement. If a Notice of Disagreement is received by PubCoBuyer, then the Preliminary Closing Statement (as revised in accordance with clause (A) or (B) below) below shall become the Final Closing Statement and become final and binding upon the Parties on the earlier of the date (A) on which the Stockholders’ Representative and PubCo Buyer resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and (B) all matters in dispute are finally resolved in writing by the Accounting Firm. During the sixty thirty (6030) days following PubCoBuyer’s receipt of a Notice of Disagreement, PubCo Buyer and the Stockholders’ Representative shall seek in good faith to resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and upon such resolution, the Final Closing Statement shall be prepared in accordance with the agreement of PubCo Buyer and the Stockholders’ Representative. (d) If PubCo and the Stockholders’ Representative are unable to resolve the any disputed items set forth in the Notice of Disagreement have not been resolved within thirty (30) days following PubCo’s receipt delivery of such Notice of Disagreement (or such longer period as PubCo Buyer and the Stockholders’ Representative may mutually agree in writing) (collectively, the “Disputed Items”), following notice of such dispute, such dispute Disputed Items shall be submitted to, and all issues having a bearing on such dispute Disputed Items shall be resolved by, (i) the dispute resolution group of BDO New YorkErnst & Young, or (ii) in the event such accounting firm is unable or unwilling to take such assignment, the dispute resolution group of a nationally recognized accounting firm mutually agreed upon by PubCo Buyer and the Stockholders’ Representative or, if PubCo Buyer and the Stockholders’ Representative cannot agree on an accounting firm within sixty thirty (6030) days after timely delivery of a Notice of Disagreement, each of PubCo Buyer and the Stockholders’ Representative shall select a nationally recognized accounting firm and such two (2) accounting firms shall designate the dispute resolution group of a third nationally recognized accounting firm that neither presently is, nor in the past three (3) years has been, engaged by either Party or any of their respective Affiliates. The “Accounting Firm” means either (x) the dispute resolution group of BDO New YorkErnst & Young, (y) the accounting firm so agreed to by PubCo Buyer and the Stockholders’ Representative, or (z) the third accounting firm so selected by the two (2) accounting firms, is hereinafter referred to as the “Accounting Firm” (it being understood that in each case in accordance with making such calculation, the Accounting Firm shall be functioning as an expert and not as an arbitrator and shall not have any authority to interpret any provision of this Section 2.12(d‎Section 2.8 or any other provision of this Agreement). PubCo Buyer and the Stockholders’ Representative shall submit to the Accounting Firm, as experts and not as arbitrators, Firm for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. PubCo Buyer and the Stockholders’ Representative shall instruct the Accounting Firm to select one (1) of its partners experienced in purchase price adjustment disputes to make a final determination of the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Indebtedness, Closing Company Transaction Expenses and the amount of the Merger Consideration based thereon, in each case, calculated with reference to the items that are in dispute as set forth in the Notice of Disagreement. PubCo Buyer and the Stockholders’ Representative shall instruct the Accounting Firm that, in resolving PubCo the items in the Notice of Disagreement that are still in dispute and in determining the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Indebtedness, Closing Company Transaction ExpensesExpenses and the amount of the Merger Consideration based thereon, the Accounting Firm shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by PubCoBuyer, on the one hand, or the Stockholders’ Representative, on the other hand, or (B) less than the smallest value for such item assigned by PubCoBuyer, on the one hand, or the Stockholders’ Representative, on the other hand, (ii) make its determination based on an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement) Agreement solely based on the written calculations and a single written presentation submitted other supporting information provided by each party and, solely if requested by the Accounting Firm, an in-person meeting concerning the dispute, at which meeting each of PubCo Buyer and the Stockholders’ Representative shall have the right to present their respective positions with respect to the dispute and a single written response of each of PubCo have present their respective advisors, counsel and the Stockholders’ Representative to each such presentation so submitted accountants, (iii) render a final resolution in writing to PubCo Buyer and the Stockholders’ Representative (which final resolution shall be requested by PubCo Buyer and the Stockholders’ Representative to be delivered not more than thirty (30) days following submission of such disputed matters to the Accounting Firm), which, absent manifest error, error (in which case such report shall be returned to the Accounting Firm for correction and such corrected report). shall be final, conclusive and binding on the Parties with respect to the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Indebtedness, Closing Company Transaction ExpensesExpenses and the amount of the Merger Consideration based thereon, and (iv) provide a written report to PubCo Buyer and the Stockholders’ Representative, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between PubCoBuyer, on the one hand, and the Equity Holders, on the other hand, based upon the percentage by which the portion of the contested amount not awarded to each of PubCo Buyer and the Stockholders’ Representative bears to the amount actually contested by such Party; provided. (e) The Preliminary Closing Statement (as adjusted by the agreement of the Parties or at the direction of the Accounting Firm, that as applicable) shall be deemed final for the purposes of this ‎Section 2.8 upon the earliest of the (i) failure of the Stockholders’ Representative to notify Buyer of a dispute within thirty (30) days (as may be extended pursuant to ‎Section 2.8(c)) after the Stockholders’ Representative receives the Preliminary Closing Statement, (ii) resolution of all disputes, pursuant to ‎Section 2.8(c), by Buyer and the Stockholders’ Representative, and (iii) resolution of all disputes, pursuant to ‎Section 2.8(d), by the Accounting Firm. (f) Within five (5) Business Days following the determination of the Final Closing Statement in accordance with ‎Section 2.8(c), ‎Section 2.8(d) or ‎Section 2.8(e), as applicable: (i) if the Estimated Merger Consideration Amount exceeds the Final Merger Consideration Amount, then Buyer shall be entitled to claim from the Adjustment Escrow Fund an amount equal to such excess (and if the Adjustment Escrow Fund is insufficient to cover such adjustment in full, Buyer shall be entitled to claim such shortfall from the Indemnity Escrow Fund), and Buyer and the Stockholders’ Representative will promptly deliver a joint written instruction to the Escrow Agent instructing it to release (A) to Buyer or its designee the amount of such excess from the Adjustment Escrow Fund (and the Indemnity Escrow Fund, as applicable) and (B) if any amount owed remains in the Adjustment Escrow Fund after giving effect to the foregoing clause ‎(A), (1) pay to the Stockholders’ Representative an amount equal to the remainder of the Adjustment Escrow Fund multiplied by the aggregate Pro Rata Percentages of the Stockholders, for further distribution to the Stockholders in accordance with their respective Pro Rata Percentages, and (2) pay to the Company an amount equal to the remainder of the Adjustment Escrow Fund, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders who have delivered properly completed and executed Option Holder Acknowledgments, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (ii) if the Final Merger Consideration Amount exceeds the Estimated Merger Consideration Amount (such excess, the “Upward Adjustment”), then Buyer shall (A) pay to the Stockholders’ Representative an amount equal to the remainder of such Upward Adjustment multiplied by the aggregate Pro Rata Percentages of the Stockholders, for further distribution to the Stockholders in accordance with their respective Pro Rata Percentages, and (B) pay to the Company an amount equal to such Upward Adjustment, if any, multiplied by the aggregate Pro Rata Percentages of the In-the-Money Option Holders, which the Company shall distribute through the Company’s payroll system to the In-the-Money Option Holders who have delivered properly completed and executed Option Holder Acknowledgments, less applicable withholding Tax, in accordance with their respective Pro Rata Percentages. (g) For the avoidance of doubt, none of the Equity Holders Holders, the Stockholders’ Representative nor any of their respective Affiliates shall have any liability under this ‎Section 2.8 for any Net Working Capital Adjustment Amount in excess of the then-remaining Adjustment Escrow Amount and the Indemnity Escrow Fund. Recovery from the Adjustment Escrow Fund and the Indemnity Escrow Fund, as applicable, shall be satisfied solely from the Escrow Fundsole and exclusive remedy available to Buyer for any claims by Buyer against Stockholders’ Representative or otherwise arising out of or relating to the Merger Consideration Adjustment contemplated by this ‎Section 2.8, and neither Buyer nor the Surviving Company or any of their respective Affiliates shall have any claim against the Stockholders’ Representative in respect thereof. (h) All payments required under this ‎Section 2.8 shall be made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing by the recipient(s). (i) It is expressly understood and agreed that Buyer’s payment of the Merger Consideration Adjustment, if any, (i) to the Company in respect of the portion of the Merger Consideration Adjustment to be paid to the Option Holders and payment thereof to the Option Holders by the Company and (ii) to the Stockholders’ Representative in respect of the portion of the Merger Consideration Adjustment to be paid to the other Equity Holders, shall be in full satisfaction of Buyer’s obligation with respect to such amounts, and, once paid in accordance with the terms of this Agreement, Buyer and its Affiliates shall have no liability to the Stockholders’ Representative, any Equity Holder or any other Person for any amounts in respect of the same.