Common use of Calculation of Merger Consideration Clause in Contracts

Calculation of Merger Consideration. (a) For purposes of this Agreement, the “Actual Merger Consideration” shall be an amount equal to (i) $855,000,000 (the “Gross Consideration”), minus (ii) Actual Indebtedness, plus (iii) the amount, if any, by which Actual Working Capital exceeds the Target Working Capital, minus (iv) the amount, if any, by which Actual Working Capital is less than the Target Working Capital, plus (v) Actual Cash, minus (vi) the amount of Company Transaction Expenses unpaid as of the Closing. (b) For purposes of this Agreement, the “Estimated Merger Consideration” shall be an amount equal to (i) the Gross Consideration, minus (ii) Estimated Indebtedness, plus (iii) the amount, if any, by which Estimated Working Capital exceeds the Target Working Capital, minus (iv) the amount, if any, by which Estimated Working Capital is less than the Target Working Capital, plus (v) Estimated Cash, minus (vi) the amount of Company Transaction Expenses unpaid as of the Closing. Not less than two (2) days prior to the anticipated Closing Date, the Company shall deliver to Buyer a statement (the “Closing Certificate”), duly certified by an authorized officer of the Company, setting forth (to the extent practicable as of such date) the Company’s good faith estimate of (i) the Estimated Working Capital, the Estimated Indebtedness, the Estimated Cash, and the Estimated Company Transaction Expenses together, in each case, with the calculations thereof and with reasonably detailed supporting information, (ii) the Company’s calculation of the Estimated Merger Consideration, (iii) the Closing Stock Payment payable at the Closing to each Stockholder in accordance with Section 2.05(c) and (iv) the Closing Option Payment payable at the Closing to each Optionholder in accordance with Section 2.05(d). If Buyer shall object to any of the information set forth in the Closing Certificate or the accompanying information delivered by the Company to Buyer pursuant to this Section 2.05(b), then Buyer and the Company shall negotiate in good faith and use reasonable efforts to attempt to agree upon appropriate adjustments; provided, however, that, the ultimate determination of the estimates in the Closing Certificate shall be made by the Company and in no event shall such negotiation delay the Closing, it being understood that Buyer’s recourse with respect to any disputes regarding the Closing Certificate shall be as provided in Section 2.07. The Company shall deliver such work papers and other documents and information supporting the Closing Certificate and the calculations therein as Buyer may reasonably request. (c) The portion of the Estimated Merger Consideration each Stockholder shall be entitled to receive at the Closing to be set forth on the Closing Certificate (such Stockholder’s “Closing Stock Payment”) shall equal the product of (i) the Closing Company Stock Per Share Merger Consideration, multiplied by (ii) the number of shares of Company Stock held by such Stockholder immediately prior to the Effective Time, in each case, as applicable, subject to reduction in accordance with Section 2.04(b). (d) The portion of the Estimated Merger Consideration each Optionholder shall be entitled to receive at the Closing to be set forth on the Closing Certificate (such Optionholder’s “Closing Option Payment”) shall equal the product of (i) the Closing Option Per Share Merger Consideration, multiplied by (ii) the number of shares of Company Stock with respect to which such Option is an In-the-Money Option.

Calculation of Merger Consideration. (a) At least three (3) Business Days prior to the Closing Date, the Stockholder Representative shall prepare and deliver to Parent a written statement the “Pre-Closing Statement”) containing its good faith calculation of its estimate of (i) Cash (the “Estimated Cash”), (ii) Indebtedness, other than the Senior Notes Redemption Amount (the “Estimated Indebtedness”), (iii) Net Working Capital (the “Estimated Net Working Capital Amount”), (iv) Transaction Expenses (the “Estimated Transaction Expenses”), (v) the Senior Notes Redemption Amount, (vi) the Rental Fleet Sales (the “Estimated Rental Fleet Sales”) and (vii) the Rental Capital Expenditures (the “Estimated Rental Capital Expenditures”). (b) The Pre-Closing Statement will be prepared, and Estimated Cash, Estimated Indebtedness (other than the Senior Notes Redemption Amount), Estimated Net Working Capital, Estimated Rental Fleet Sales, the Estimated Rental Capital Expenditures, the Senior Notes Redemption Amount and Estimated Transaction Expenses will be determined, on a consolidated basis, in accordance with the terms of Section 3.9 regarding the preparation of the Preliminary Statement (as defined below). (c) For purposes of this Agreement, the term “Actual Closing Merger Consideration” shall be an amount equal to means (i) $855,000,000 965,000,000 (the “Gross Base Consideration”), minus (ii) Actual Indebtednessthe amount of the Estimated Indebtedness (other than the Senior Notes Redemption Amount), plus (iii) the amount, if any, by which Actual the Estimated Net Working Capital Amount exceeds the Target Net Working CapitalCapital Amount, minus (iv) the amount, if any, by which Actual the Target Net Working Capital is less than Amount exceeds the Target Estimated Net Working CapitalCapital Amount, plus (v) Actual Cashthe amount of Estimated Cash if the amount of Estimated Cash is positive, minus (vi) the amount by which zero (0) exceeds the amount of Company Transaction Expenses unpaid as Estimated Cash if the amount of the Closing. (b) For purposes of this Agreement, the “Estimated Merger Consideration” shall be an amount equal to (i) the Gross ConsiderationCash is negative, minus (iivii) the amount by which the Estimated IndebtednessRental Fleet Sales exceeds the relevant Rental Fleet Sales set forth on Schedule 1.1(a), minus (viii) the amount by which the Estimated Rental Capital Expenditures are below the relevant amount of Rental Capital Expenditures set forth on Schedule 1.1(b), plus (iiiix) the amount, if any, amount by which the Estimated Working Rental Capital Expenditures exceeds the Target Working Capitalrelevant amount of Rental Capital Expenditures set forth on Schedule 1.1(b) (provided, that, in no event shall the amount set forth in this subclause (ix) exceed $15,000,000), minus (iv) the amount, if any, by which Estimated Working Capital is less than the Target Working Capital, plus (v) Estimated Cash, minus (vix) the amount of Company the Estimated Transaction Expenses unpaid as Expenses, plus (xi) the aggregate exercise price of the Closing. Not less than two (2) days prior to the anticipated Closing Date, the Cancelled Company shall deliver to Buyer a statement (the “Closing Certificate”), duly certified by an authorized officer of the Company, setting forth (to the extent practicable as of such date) the Company’s good faith estimate of (i) the Estimated Working Capital, the Estimated Indebtedness, the Estimated Cash, and the Estimated Company Transaction Expenses together, in each case, with the calculations thereof and with reasonably detailed supporting information, (ii) the Company’s calculation of the Estimated Merger Consideration, (iii) the Closing Stock Payment payable at the Closing to each Stockholder in accordance with Section 2.05(c) and (iv) the Closing Option Payment payable at the Closing to each Optionholder in accordance with Section 2.05(d). If Buyer shall object to any of the information set forth in the Closing Certificate or the accompanying information delivered by the Company to Buyer pursuant to this Section 2.05(b), then Buyer and the Company shall negotiate in good faith and use reasonable efforts to attempt to agree upon appropriate adjustments; provided, however, that, the ultimate determination of the estimates in the Closing Certificate shall be made by the Company and in no event shall such negotiation delay the Closing, it being understood Options that Buyer’s recourse with respect to any disputes regarding the Closing Certificate shall be as provided in Section 2.07. The Company shall deliver such work papers and other documents and information supporting the Closing Certificate and the calculations therein as Buyer may reasonably request. (c) The portion of the Estimated Merger Consideration each Stockholder shall be entitled to receive at the Closing to be set forth on the Closing Certificate (such Stockholder’s “Closing Stock Payment”) shall equal the product of (i) the Closing Company Stock Per Share Merger Consideration, multiplied by (ii) the number of shares of Company Stock held by such Stockholder are outstanding immediately prior to the Effective Time, in each case, as applicable, subject to reduction in accordance with Section 2.04(b). minus (d) The portion of the Estimated Merger Consideration each Optionholder shall be entitled to receive at the Closing to be set forth on the Closing Certificate (such Optionholder’s “Closing Option Payment”) shall equal the product of (ixii) the Closing Option Per Share Merger ConsiderationEscrow Amount, multiplied by minus (iixiii) the number of shares of Company Stock with respect to which such Option is an In-the-Money OptionExpense Reserve, and minus (xiv) the Senior Notes Redemption Amount.

Calculation of Merger Consideration. (a) For purposes of this AgreementNot fewer than five Business Days prior to the Closing, the “Actual Merger Consideration” president or chief financial officer of the Company shall be an amount equal deliver to (i) $855,000,000 (Parent a certificate setting forth the “Gross Consideration”), minus (ii) Actual Indebtedness, plus (iii) Company's good faith estimates of the amount, if any, by which Actual Working Capital exceeds the Target amounts of Closing Working Capital, minus (iv) the amount, if any, by which Actual Working Capital is less than the Target Working Capital, plus (v) Actual Closing Cash, minus (vi) Closing Indebtedness, the amount of Series C Preferred Redemption Amount, Company Transaction Expenses unpaid and the adjustment to be made pursuant to Section 2.3(b), together with an estimated consolidated balance sheet of the Company and the Company Subsidiaries as of the ClosingAdjustment Time, and a calculation of the Merger Consideration based on the foregoing estimates (the "Price Certificate"). The Price Certificate shall also include the Company's determination of the Series C Preferred Per Share Amount and the Applicable Per Share Amount for each class and series of Junior Stock based on the foregoing estimate of the Merger Consideration. The Company will prepare the Price Certificate (including making the estimated determinations included therein) utilizing the principles set forth in Section 2.4(f). (b) For purposes of this Agreement, the “Estimated Merger Consideration” shall be an amount equal to (i) the Gross Consideration, minus (ii) Estimated Indebtedness, plus (iii) the amount, if any, by which Estimated Working Capital exceeds the Target Working Capital, minus (iv) the amount, if any, by which Estimated Working Capital is less No later than the Target Working Capital90th day after the Closing Date, plus (v) Estimated Cash, minus (vi) Parent will prepare and deliver to the amount Stockholder Representative a consolidated balance sheet of the Company Transaction Expenses unpaid and the Company Subsidiaries as of the Closing. Not less than two Adjustment Time (2) days prior to the anticipated "Closing DateBalance Sheet"), the Company shall deliver to Buyer together with a statement (the “"Closing Certificate”), duly certified by an authorized officer Statement") setting forth Parent's determination of the Companyamount of the Merger Consideration, setting which shall include Parent's determinations of Closing Working Capital, Closing Cash, Closing Indebtedness and Company Transaction Expenses. Parent will prepare the Closing Balance Sheet and the Closing Statement (including making the determinations included therein) utilizing the principles set forth in Section 2.4(f). (to c) During the extent practicable as 60-day period immediately following the Stockholder Representative's receipt of such date) the Company’s good faith estimate of Closing Balance Sheet and the Closing Statement, the Stockholder Representative and its advisors and representatives (i) the Estimated Working Capitalwill be permitted to review, during normal business hours and upon reasonable notice, the Estimated Indebtedness, Surviving Corporation's and the Estimated CashCompany Subsidiaries' books and records and the working papers related to the preparation of the Closing Balance Sheet and the Closing Statement (including the determinations included therein and the audit performed on the Closing Balance Sheet), and the Estimated Company Transaction Expenses together, in each case, with the calculations thereof and with reasonably detailed supporting information, (ii) will be given reasonable access, during normal business hours and upon reasonable notice, to knowledgeable employees and accounting professionals of Parent in order to facilitate the Company’s calculation Stockholder Representative's review of the Estimated Merger Consideration, (iii) Closing Balance Sheet and the Closing Stock Payment payable at Statement; provided that the Closing to each Stockholder review and access described in accordance with Section 2.05(cclauses (i) and (ivii) will be conducted at times and in a manner that does not unreasonably interfere with the operation of Parent's, the Surviving Corporation's or the Company Subsidiaries' respective businesses. The Closing Balance Sheet and the Closing Option Payment payable at Statement (including the Closing determinations included therein) will become final, binding and conclusive upon Parent and the Junior Stockholders (A) on the 60th day following the Stockholder Representative's receipt thereof, unless Parent receives from the Stockholder Representative prior to each Optionholder in accordance with Section 2.05(d). If Buyer shall object such 60th day written notice (a "Dispute Notice") of the Stockholder Representative's objection to any of the information account or determination set forth in the Closing Certificate Balance Sheet or the accompanying information delivered by Closing Statement (the Company to Buyer pursuant to this Section 2.05(b), then Buyer and magnitude of which the Company shall negotiate in good faith and Stockholder Representative will use reasonable efforts to attempt to agree upon appropriate adjustments; provided, however, thatquantify) or (B) on such earlier date as the Stockholder Representative notifies Parent that it does not dispute the Closing Balance Sheet and Closing Statement. Any Dispute Notice will specify in reasonable detail the nature and dollar amount of any disagreement so asserted (collectively, the ultimate determination of the estimates in the Closing Certificate shall be made by the Company and in no event shall such negotiation delay the Closing, it being understood that Buyer’s recourse with respect to any disputes regarding the Closing Certificate shall be as provided in Section 2.07"Disputed Items"). The Company shall deliver such work papers and other documents and information supporting the Closing Certificate and the calculations therein as Buyer Stockholder Representative may reasonably request. (c) The portion of the Estimated Merger Consideration each Stockholder shall be entitled to receive at the Closing to be set forth dispute any amounts reflected on the Closing Certificate (Balance Sheet or Closing Statement, but only to correct mathematical errors or on the basis that such Stockholder’s “Closing Stock Payment”) shall equal the product of (i) the Closing Company Stock Per Share Merger Consideration, multiplied by (ii) the number of shares of Company Stock held by such Stockholder immediately prior to the Effective Time, in each case, as applicable, subject to reduction amounts were not determined in accordance with Section 2.04(b2.4(f) hereof. Any account or determination set forth or reflected on the Closing Balance Sheet or the Closing Statement that is not specifically objected to in the Dispute Notice will be deemed final, binding and conclusive upon Parent, the Junior Stockholders, and the Stockholder Representative upon delivery of the Dispute Notice. If the Stockholder Representative timely delivers a Dispute Notice, then the determination of the Merger Consideration will become final, binding and conclusive upon Parent, the Junior Stockholders and the Stockholder Representative on the first to occur of (x) the date on which Parent and the Stockholder Representative resolve in writing all differences they have with respect to the Disputed Items or (y) the date on which all of the Disputed Items that are not resolved by Parent and the Stockholder Representative in writing are finally resolved in writing by the Independent Accountants in accordance with Section 2.4(d). (d) During the 30 days following delivery of a Dispute Notice, Parent and the Stockholder Representative will seek in good faith to resolve in writing any differences which they have with respect to the Disputed Items. Any Disputed Item resolved in writing by Parent and the Stockholder Representative will be deemed final, binding and conclusive on Parent, the Junior Stockholders and the Stockholder Representative. If Parent and the Stockholder Representative do not reach agreement on all of the Disputed Items during such 30-day period (or such longer period as they shall mutually agree), then at the end of such 30-day (or longer) period Parent and the Stockholder Representative shall submit all unresolved Disputed Items (collectively, the "Unresolved Items") to a nationally recognized firm of independent certified public accountants with a nationwide audit and accounting practice and that is selected by mutual agreement of Parent and the Stockholder Representative) (the "Independent Accountants") to review and resolve such matters. The portion Independent Accountants will determine each Unresolved Item (the amount of which may not be more favorable to Parent than the related amount reflected in the Closing Statement nor more favorable to the Stockholder Representative and the Junior Stockholders than the related amount set forth in the Dispute Notice) in accordance with this Section 2.4(d) and Section 2.4(f) as promptly as may be reasonably practicable, and Parent and the Stockholder Representative will instruct the Independent Accountants to endeavor to complete such process within a period of no more than 45 days. The Independent Accountants may conduct such proceedings as the Independent Accountants believe, in their sole discretion, will assist in the determination of the Unresolved Items; provided that, except as Parent and the Stockholder Representative may otherwise agree in writing, all communications between Parent and the Stockholder Representative or any of their respective representatives, on the one hand, and the Independent Accountants, on the other hand, will be in writing with copies simultaneously delivered to the non-communicating party. The Independent Accountants' determination of the Unresolved Items will be final, binding and conclusive on Parent, the Junior Stockholders and the Stockholder Representative, effective as of the date the Independent Accountants' written determination is received by Parent and the Stockholder Representative. The fees and expenses of the Independent Accountants will be borne one-half by Parent and one-half by the Stockholder Representative (for the account of the Junior Stockholders), and each of Parent and the Stockholder Representative (for the account of the Junior Stockholders) will bear its own legal, accounting and other fees and expenses of participating in such dispute resolution procedure. (e) Upon final determination of the Merger Consideration pursuant to Section 2.4(c) or Section 2.4(d), an adjustment will be determined and paid as follows: (i) If the estimated amount of the Merger Consideration as set forth in the Price Certificate (the "Estimated Merger Consideration") exceeds the Merger Consideration as finally determined pursuant to Section 2.4(c) or Section 2.4(d) hereof, the Stockholder Representative and Parent shall within five (5) Business Days of the final determination of the Merger Consideration issue joint written instructions directing the Post-Closing Escrow Agent to pay to Parent the amount of such excess out of the Post-Closing Escrow Fund by wire transfer of immediately available funds to the account specified by Parent. (ii) If the Merger Consideration, as finally determined pursuant to Section 2.4(c) or Section 2.4(d) hereof, exceeds the Estimated Merger Consideration, Parent will pay to the Stockholder Representative (on behalf of the Junior Stockholders) the amount of such excess. Any amount payable by Parent pursuant to this Section 2.4(e)(ii) will be paid within five (5) Business Days of the final determination of the Merger Consideration by wire transfer of immediately available funds to the account specified by the Stockholder Representative. (f) For the purposes of Section 2.3 and this Section 2.4, each Optionholder shall be entitled accounting term used herein will have the meaning that is applied thereto in accordance with GAAP as in effect on the Balance Sheet Date and, to receive at the extent consistent with GAAP as in effect on the Balance Sheet Date, the accounting principles, policies, procedures and methodologies applied in preparing the Interim Balance Sheet and the accompanying statement of income. Each account included in the Price Certificate, the Closing to Statement and the Closing Balance Sheet will be set forth (A) calculated in accordance with GAAP as in effect on the Closing Certificate Balance Sheet Date, and, to the extent consistent with GAAP as in effect on the Balance Sheet Date, utilizing the accounting principles, policies, procedures and methodologies applied in preparing the Company Financial Statements (such Optionholder’s “Closing Option Payment”without regard to materiality), including with respect to the nature or classification of accounts, and determining levels of reserves or levels of accruals; and (B) shall equal consistent with the product books and records of the Company and the Company Subsidiaries and the definitions herein; provided, that in determining current assets and liabilities hereunder, (i) the Closing Option Per Share Merger Considerationall accounting entries shall be taken into account regardless of their amount and all known errors and omissions shall be corrected, multiplied by (ii) all known proper adjustments shall be made, (iii) appropriate reserves for all known and quantifiable liabilities and obligations for which reserves are appropriate in accordance with GAAP as in effect on the number of shares of Company Stock with respect Balance Sheet Date shall be included, and (iv) such reserves may not be reversed or reduced except to which such Option is an In-the-Money Optionreflect changes in facts and circumstances after the date hereof.

Calculation of Merger Consideration. (a) For purposes of this Agreement, the “Actual Merger Consideration” shall be an amount equal to No later than five (i5) $855,000,000 (the “Gross Consideration”), minus (ii) Actual Indebtedness, plus (iii) the amount, if any, by which Actual Working Capital exceeds the Target Working Capital, minus (iv) the amount, if any, by which Actual Working Capital is less than the Target Working Capital, plus (v) Actual Cash, minus (vi) the amount of Company Transaction Expenses unpaid as of the Closing. (b) For purposes of this Agreement, the “Estimated Merger Consideration” shall be an amount equal to (i) the Gross Consideration, minus (ii) Estimated Indebtedness, plus (iii) the amount, if any, by which Estimated Working Capital exceeds the Target Working Capital, minus (iv) the amount, if any, by which Estimated Working Capital is less than the Target Working Capital, plus (v) Estimated Cash, minus (vi) the amount of Company Transaction Expenses unpaid as of the Closing. Not less than two (2) days Business Days prior to the anticipated Closing Date, the Company shall prepare and deliver to Buyer Parent a statement (the “Closing Certificate”), duly certified by certificate of an authorized officer of the Company, setting forth (to the extent practicable as of such date) the Company’s its good faith estimate as of the opening of business on the Closing Date of (i) the Net Working Capital (the “Estimated Net Working Capital, the Estimated Indebtedness, the Estimated Cash, and the Estimated Company Transaction Expenses together, in each case, with the calculations thereof and with reasonably detailed supporting information”), (ii) the Company’s calculation of Closing Net Indebtedness (the “Estimated Merger ConsiderationClosing Net Indebtedness”), and (iii) the Transaction Expenses (the “Estimated Transaction Expenses”). (b) The initial merger consideration shall be $1,400,000,000.00 (i) (A) increased, if the Estimated Net Working Capital exceeds the Target Net Working Capital, by an amount equal to the amount of such excess or (B) decreased, if the Target Net Working Capital exceeds the Estimated Net Working Capital, by an amount equal to such excess (such increase or decrease, as the case may be, being the “Estimated Closing Stock Payment payable at Working Capital Adjustment”), (ii) decreased by (y) the Estimated Closing to each Stockholder in accordance with Section 2.05(c) Net Indebtedness and (ivz) the Closing Option Payment payable at the Closing to each Optionholder in accordance with Section 2.05(d). If Buyer shall object to any of the information set forth in the Closing Certificate or the accompanying information delivered Estimated Transaction Expenses, and (iii) increased by the Company amount of any Recapitalization Financing Expenses that were incurred up to Buyer pursuant to this Section 2.05(b), then Buyer and the Company shall negotiate in good faith and use reasonable efforts to attempt to agree upon appropriate adjustments; provided, however, that$18,750,000 (such amount, the ultimate determination of the estimates in the Closing Certificate shall be made by the Company and in no event shall such negotiation delay the Closing, it being understood that Buyer’s recourse with respect to any disputes regarding the Closing Certificate shall be as provided in Section 2.07. The Company shall deliver such work papers and other documents and information supporting the Closing Certificate and the calculations therein as Buyer may reasonably request“Estimated Merger Consideration). (c) The portion of the Estimated Merger Consideration each Stockholder shall be entitled to receive at Within forty-five (45) days following the Closing Date, Parent and the Company shall deliver or cause to be set forth on delivered to the Company the following (collectively, the “Preliminary Closing Certificate (such Stockholder’s “Closing Stock PaymentStatement”) shall equal the product of ): (i) an unaudited consolidated balance sheet of the Closing Company Stock Per Share Merger Consideration, multiplied by (ii) the number of shares of Company Stock held by such Stockholder Acquired Companies immediately prior to the Effective TimeClosing (the “Preliminary Closing Balance Sheet”), in each case, as applicable, subject to reduction prepared by Parent in accordance with Section 2.04(bGAAP applied on a consistent basis; (ii) a certificate of an officer of Parent, or one of its Subsidiaries, certifying that the Preliminary Closing Balance Sheet has been prepared in accordance with GAAP, applied on a consistent basis; and (iii) a reasonably detailed calculation by Parent of (x) the Net Working Capital as of the opening of business on the Closing Date based on the Preliminary Closing Balance Sheet (the “Preliminary Net Working Capital”), and (y) the Net Indebtedness as of the Closing Date immediately prior to the Closing (the “Preliminary Closing Net Indebtedness”), and (z) the Transaction Expenses (the “Preliminary Transaction Expenses). (iv) The Stockholder Representatives shall have fifteen (15) Business Days following receipt of the Preliminary Closing Statement to review the Preliminary Closing Balance Sheet and the calculation of Preliminary Net Working Capital, the Preliminary Closing Net Indebtedness and the Preliminary Transaction Expenses and to notify Parent in writing if they dispute the amount of the Preliminary Net Working Capital, the Preliminary Closing Net Indebtedness, and/or the Preliminary Transaction Expenses (the “Dispute Notice”), specifying the reasons therefor in reasonable detail. (d) The portion In connection with the Stockholder Representatives’ review, the Stockholder Representatives and their representatives shall have reasonable access, during normal business hours and upon reasonable notice, to all relevant work papers, schedules, memoranda and other documents prepared by Parent or its representatives in connection with its preparation of the Estimated Merger Consideration each Optionholder Preliminary Closing Balance Sheet and/or its calculation of Preliminary Net Working Capital, Preliminary Closing Net Indebtedness and Preliminary Transaction Expenses and to finance personnel of Parent and its Subsidiaries and any other information which the Stockholder Representatives reasonably request, and Parent shall, and shall cause its Subsidiaries to, cooperate reasonably with the Stockholder Representatives and their representatives in connection therewith. (e) In the event that the Stockholder Representatives shall deliver a Dispute Notice to Parent, Parent and the Stockholder Representatives shall cooperate in good faith to resolve such dispute as promptly as practicable and, upon such resolution, if any, any adjustments to the Preliminary Closing Balance Sheet, Preliminary Net Working Capital, Preliminary Closing Net Indebtedness or Preliminary Transaction Expenses shall be entitled made in accordance with the agreement of Parent and the Stockholder Representatives. If Parent and the Stockholder Representatives are unable to receive at resolve any such dispute within ten (10) Business Days (or such longer period as Parent and the Closing to Stockholder Representatives shall mutually agree in writing) of the Stockholder Representatives’ delivery of such Dispute Notice, such dispute shall be set forth resolved by the Independent Accounting Firm, and such determination shall be final and binding on the parties. The Independent Accounting Firm shall consider only those items and amounts as to which Parent and the Stockholder Representatives have disagreed within the time periods and on the terms specified above. In making such determination, the Independent Accounting Firm may rely only upon information submitted to it by Parent or the Stockholder Representatives. The Independent Accounting Firm shall be instructed to use reasonable best efforts to deliver to Parent and the Stockholder Representatives a written report setting forth the resolution of each disputed matter within thirty (30) days of submission of the Preliminary Closing Certificate (Balance Sheet, the Preliminary Net Working Capital, the Preliminary Closing Net Indebtedness and/or Preliminary Transaction Expenses to it and, in any case, as promptly as practicable after such Optionholder’s “Closing Option Payment”submission. Any expenses relating to the engagement of the Independent Accounting Firm in respect of its services pursuant to this Section 3.2(e) shall equal be shared equally by the product of Stockholders, on the one hand, and Parent and the Company, jointly and severally, on the other hand. The Preliminary Closing Balance Sheet, the Preliminary Net Working Capital, the Preliminary Closing Net Indebtedness and the Preliminary Transaction Expenses, (i) if no Dispute Notice has been timely delivered by the Closing Option Per Share Merger ConsiderationStockholder Representatives, multiplied as originally submitted by Parent or (ii) if a Dispute Notice has been timely delivered by the number Stockholder Representatives, as determined pursuant to the resolution of shares of Company Stock such dispute in accordance with respect to which such Option is an In-the-Money Optionthis Section 3.2(e), shall be, respectively, the “Final Closing Balance Sheet,” the “Final Net Working Capital,” the “Final Closing Net Indebtedness” and the “Final Transaction Expenses).

Calculation of Merger Consideration. (a) For purposes The number of this Agreement, Egghead Common Shares constituting the “Actual Merger Consideration” Aggregate Common Consideration shall be an amount the total number of Egghead Common Shares determined under subsections (i) and (ii) below, rounding down to the nearest whole share: (i) a number of Egghead Common Shares (the "Common Preference Shares") equal to (iA) the Outstanding Company Common plus the Total Option Shares; multiplied by (B) $855,000,000 5.00, less $.08 for each calendar month fully elapsed between November 15, 1996 and the Closing Date (as adjusted for any stock split, stock dividend or similar event with respect to the “Gross Consideration”Company Common Stock occurring after the date hereof), minus ; divided by (ii) Actual Indebtedness, plus (iiiC) the amount, if any, by which Actual Working Capital exceeds the Target Working Capital, minus (iv) the amount, if any, by which Actual Working Capital is less than the Target Working Capital, plus (v) Actual Cash, minus (vi) the amount of Company Transaction Expenses unpaid as average of the Closing. (b) For purposes of this Agreement, closing sale prices for Egghead Common Shares on the “Estimated Merger Consideration” shall be an amount equal to (i) Nasdaq/NM over the Gross Consideration, minus (ii) Estimated Indebtedness, plus (iii) the amount, if any, by which Estimated Working Capital exceeds the Target Working Capital, minus (iv) the amount, if any, by which Estimated Working Capital is less than the Target Working Capital, plus (v) Estimated Cash, minus (vi) the amount of Company Transaction Expenses unpaid as of the Closing. Not less than two (2) 30 calendar day period ending three days prior to the anticipated Closing DateDate (the "Closing Average"); and (ii) a number of Egghead Common Shares determined by subtracting the Common Preference Shares and the Preferred Preference Shares (as defined below) from 5,600,000 and multiplying the result so obtained by a fraction, the Company shall deliver to Buyer a statement (numerator of which is the “Closing Certificate”), duly certified by an authorized officer sum of the Company, setting forth (to Outstanding Company Common and the extent practicable as of such date) the Company’s good faith estimate of (i) the Estimated Working Capital, the Estimated Indebtedness, the Estimated CashTotal Option Shares, and the Estimated denominator of which is the sum of (A) the Outstanding Company Transaction Expenses together, in each case, with the calculations thereof and with reasonably detailed supporting informationCommon, (ii) the Company’s calculation of the Estimated Merger Consideration, (iii) the Closing Stock Payment payable at the Closing to each Stockholder in accordance with Section 2.05(c) and (iv) the Closing Option Payment payable at the Closing to each Optionholder in accordance with Section 2.05(d). If Buyer shall object to any of the information set forth in the Closing Certificate or the accompanying information delivered by the Company to Buyer pursuant to this Section 2.05(b), then Buyer and the Company shall negotiate in good faith and use reasonable efforts to attempt to agree upon appropriate adjustments; provided, however, that, the ultimate determination of the estimates in the Closing Certificate shall be made by the Company and in no event shall such negotiation delay the Closing, it being understood that Buyer’s recourse with respect to any disputes regarding the Closing Certificate shall be as provided in Section 2.07. The Company shall deliver such work papers and other documents and information supporting the Closing Certificate and the calculations therein as Buyer may reasonably request. (c) The portion of the Estimated Merger Consideration each Stockholder shall be entitled to receive at the Closing to be set forth on the Closing Certificate (such Stockholder’s “Closing Stock Payment”) shall equal the product of (i) the Closing Company Stock Per Share Merger Consideration, multiplied by (iiB) the number of shares of Company Common Stock held by such Stockholder into which the Outstanding Company Preferred is convertible in accordance with the Company's Articles of Incorporation immediately prior to the Effective TimeClosing, in each case, as applicable, subject to reduction in accordance with Section 2.04(b). (d) The portion of the Estimated Merger Consideration each Optionholder shall be entitled to receive at the Closing to be set forth on the Closing Certificate (such Optionholder’s “Closing Option Payment”) shall equal the product of (iC) the Closing Total Option Per Share Merger Consideration, multiplied by Shares and (iiD) the number of shares of capital stock of the Company, if any, issuable upon exercise, conversion or exchange of, or otherwise in respect of, any other securities or rights of the Company Stock then outstanding (such denominator being referred to herein as the "Total Common Equivalents"). (b) The number of Egghead Common Shares constituting the Aggregate Preferred Consideration shall be the total number of Egghead Common Shares determined under subsections (i) and (ii) below, rounding down to the nearest whole share: (i) a number of Egghead Common Shares (the "Preferred Preference Shares") equal to (A) the Outstanding Company Preferred; multiplied by (B) $6.56 (as adjusted for any stock split, stock dividend or similar event with respect to the Company Preferred Stock or otherwise affecting the conversion ratio of Company Preferred Stock into Company Common Stock under the Company's Articles of Incorporation occurring after the date hereof); divided by (C) the Closing Average; and (ii) a number of Egghead Common Shares determined by subtracting the Common Preference Shares and the Preferred Preference Shares from 5,600,000 and multiplying the result so obtained by a fraction, the numerator of which is the Outstanding Company Preferred and the denominator of which is the Total Common Equivalents. (c) Notwithstanding any other provisions of this Agreement: (i) In no event shall the total number of Egghead Common Shares issuable pursuant to this Agreement in respect of Company Shares and Options exceed 5,600,000; (ii) In the event that the number of Egghead Common Shares determined solely under Section 4.5(b)(i) above would have equaled or exceeded 5,600,000 but for the limitation imposed by Section 4.5(c)(i) above, the Aggregate Preferred Consideration shall be 5,600,000 Egghead Common Shares, and the Aggregate Common Consideration shall be zero Egghead Common Shares; (iii) In the event that the number of Egghead Common Shares determined solely under Sections 4.5(b)(i) and 4.5(a)(i) above would have equaled or exceeded 5,600,000 but for the limitation imposed by Section 4.5(c)(i) above, the Aggregate Preferred Consideration shall be limited to the Preferred Preference Shares and the Aggregate Common Consideration shall be equal to 5,600,000 less the Preferred Preference Shares. (d) An example of how the Aggregate Common Consideration and the Aggregate Preferred Consideration (together, the "Merger Consideration") would be calculated, based on a specified assumed Closing Average, and how the Exchange Ratios would be calculated pursuant to Section 4.1 above, is attached hereto as Exhibit 4.5(d). The parties agree that such Option example shall govern the calculation of the Merger Consideration under this Section 4.5 and the Exchange Ratios under Section 4.1 once the definitive Closing Average is an In-the-Money Optionestablished.

Calculation of Merger Consideration. (a) For purposes The aggregate amount of this Agreement, consideration to be paid by Parent with respect to the Company LLC Interests (the “Actual Merger Consideration” ”) shall be (w) an amount of restricted common limited partnership units of Parent (the “OP Units”) with an aggregate value equal to the Accredited OP Unit Amount; (x) an amount of restricted General Partner Common Stock and cash with an aggregate value equal to the Non-Accredited Share Amount; (y) an amount of General Partner Common Stock with an aggregate value of $125,000,000 (the “General Partner Common Stock Amount”); provided that Parent may, in its sole discretion by providing Wexford Equities with written notice not less than two Business Days prior to Closing, elect to pay cash in lieu of General Partner Common Stock, which election shall increase the Base Purchase Price by $125,000,000 automatically; and (z) an amount of cash equal to: (i) $855,000,000 (the “Gross Consideration”), minus Base Purchase Price; (ii) Actual Indebtedness, plus minus the Debt Payoff Amount; (iii) minus the Closing Costs (to the extent not satisfied prior to the Closing); (iv) minus the Assumed Debt Amount; (v) plus the amount, if any, by which Actual Working Capital the Final Closing Adjustment exceeds the Target Working Capital, $0 or minus (iv) the amount, if any, by which Actual Working Capital the Final Closing Adjustment is less than the Target Working Capital, plus (v) Actual Cash, minus $0; (vi) plus the amount of Company Transaction Expenses unpaid as of the ClosingConstruction and Development Costs. (b) For purposes of this Agreement, the “Estimated Merger Consideration” shall be an amount equal to (i) the Gross Consideration, minus (ii) Estimated Indebtedness, plus (iii) the amount, if any, by which Estimated Working Capital exceeds the Target Working Capital, minus (iv) the amount, if any, by which Estimated Working Capital is less than the Target Working Capital, plus (v) Estimated Cash, minus (vi) the amount of Company Transaction Expenses unpaid as of the Closing. Not less than two (2) days five Business Days prior to the anticipated Closing Date, the Company shall deliver to Buyer a statement (Parent the “Closing Certificate”), duly certified by an authorized officer of the Company, setting forth (to the extent practicable as of such date) the Company’s good faith estimate of (i) the Estimated Working Capital, the Estimated Indebtedness, the Estimated Cash, and the Estimated Company Transaction Expenses togetherfollowing, in each case, based upon the books and records of the Company and the Related Entities and prepared in accordance with GAAP as consistently applied by the calculations thereof Company in the Financial Statements, with all appropriate supporting documentation and with records reasonably detailed supporting information, requested by Parent: (i) a statement of the estimated Closing Adjustment as of the Closing Date (the “Estimated Closing Adjustment”) in substantially the form attached hereto as Schedule I; (ii) the Company’s calculation a statement of the estimated Construction and Development Costs (the “Estimated Merger Consideration, Construction and Development Costs”); (iii) a statement of the Closing Stock Payment payable at estimated Debt Payoff Amount (the Closing to each Stockholder in accordance with Section 2.05(c) and “Estimated Debt Payoff Amount”); (iv) the Closing Option Payment payable at the Closing to each Optionholder in accordance with Section 2.05(d). If Buyer shall object to any a statement of the information set forth in estimated Assumed Debt Amount (the Closing Certificate or the accompanying information delivered by the Company to Buyer pursuant to this Section 2.05(b“Estimated Assumed Debt Amount”), then Buyer and the Company shall negotiate in good faith and use reasonable efforts to attempt to agree upon appropriate adjustments; provided, however, that, the ultimate determination and (v) a statement of the estimates in estimated Closing Costs (the “Estimated Closing Certificate shall be made by the Company and in no event shall such negotiation delay the Closing, it being understood that Buyer’s recourse with respect to any disputes regarding the Closing Certificate shall be as provided in Section 2.07. The Company shall deliver such work papers and other documents and information supporting the Closing Certificate and the calculations therein as Buyer may reasonably requestCosts”). (c) The portion of the Estimated Merger Consideration each Stockholder No additional consideration shall be entitled to receive at the Closing to be set forth on the Closing Certificate (such Stockholder’s “Closing Stock Payment”) shall equal the product of (i) the Closing Company Stock Per Share Merger Consideration, multiplied by (ii) the number of shares of Company Stock held by such Stockholder immediately prior to the Effective Time, in each case, as applicable, subject to reduction in accordance with Section 2.04(b). (d) The portion of the Estimated Merger Consideration each Optionholder shall be entitled to receive at the Closing to be set forth on the Closing Certificate (such Optionholder’s “Closing Option Payment”) shall equal the product of (i) the Closing Option Per Share Merger Consideration, multiplied by (ii) the number of shares of Company Stock payable with respect to which such Option is an In-the-Money Optionthe Related Entity LLC Interests, the Agent Common Stock, or otherwise in connection with the Related Entity Transfers.

Calculation of Merger Consideration. At the Effective Time, all of the shares of Company Stock then issued and outstanding shall cease to exist and automatically be converted into the right to receive, without duplication: (ai) For purposes of this Agreement, the “Actual Merger Consideration” shall be an amount of cash equal to (i1) (A) $855,000,000 (the “Gross Consideration”), minus (ii) Actual Indebtedness, plus (iii) the amount, if any, by which Actual Working Capital exceeds the Target Working Capital, minus (iv) the amount, if any, by which Actual Working Capital is less than the Target Working Capital, plus (v) Actual Cash, minus (vi) the amount of Company Transaction Expenses unpaid as of the Closing. (b) For purposes of this Agreement, the “Estimated Merger Consideration” shall be an amount equal to 145,000,000 (i) less the Gross Consideration, minus (ii) Estimated Indebtedness, plus (iii) the amount, if any, by which Estimated Working Capital exceeds the Target Working Capital, minus (iv) the amount, if any, by which Estimated Working Capital is less than the Target Working Capital, plus (v) Estimated Cash, minus (vi) the amount of Company Transaction Expenses unpaid as of the Closing. Not less than two (2) days prior to the anticipated Closing Date, the Company shall deliver to Buyer a statement (the “Closing Certificate”), duly certified by an authorized officer of the Company, setting forth (to the extent practicable as of such date) the Company’s good faith estimate of (i) the Estimated Working Capital, the Estimated Indebtedness, the Estimated Cash, and the Estimated Company Transaction Expenses together, in each case, with the calculations thereof and with reasonably detailed supporting informationHolsum Obligations, (ii) plus the Company’s calculation of the Estimated Merger ConsiderationHolsum Special Obligations Tax Benefit Amount, (iii) plus the Closing Stock Payment payable at the Closing to each Stockholder in accordance with Section 2.05(c) and (iv) the Closing Option Payment payable at the Closing to each Optionholder in accordance with Section 2.05(d). If Buyer shall object to any of the information set forth in the Closing Certificate or the accompanying information delivered by the Company to Buyer pursuant to this Section 2.05(b), then Buyer and the Company shall negotiate in good faith and use reasonable efforts to attempt to agree upon appropriate adjustments; provided, however, that, the ultimate determination of the estimates in the Closing Certificate shall be made by the Company and in no event shall such negotiation delay the Closing, it being understood that Buyer’s recourse with respect to any disputes regarding the Closing Certificate shall be as provided in Section 2.07. The Company shall deliver such work papers and other documents and information supporting the Closing Certificate and the calculations therein as Buyer may reasonably request. (c) The portion of the Estimated Merger Consideration each Stockholder shall be entitled to receive at the Closing to be set forth on the Closing Certificate (such Stockholder’s “Closing Stock Payment”) shall equal the product of (i) the Closing Company Stock Per Share Merger ConsiderationSAR Plan Interest Benefit Amount, multiplied by (B) 0.5 (the “Primary Cash Consideration”) plus (2) the Special Cash Consideration, if applicable, minus (3) $1,500,000 (collectively, the “Cash Consideration”); and (ii) the number of shares of Company Purchaser Stock held by such Stockholder immediately prior equal to the Effective TimePrimary Cash Consideration divided by the Average Price; provided, in each casehowever, as applicableif the Average Price is less than $21.00 per share (the “Minimum Price”), subject to reduction in accordance with Section 2.04(b). (d) The portion of then the Estimated Merger Consideration each Optionholder Shareholders shall be entitled to receive at the Closing to be set forth on the Closing Certificate (such Optionholder’s “Closing Option Payment”) shall equal the product of (i) the Closing Option Per Share Merger Consideration, multiplied by (ii) the number of shares of Purchaser Stock equal to the Primary Cash Consideration divided by the Minimum Price plus an amount in cash (the “Special Cash Consideration”) derived from the following formula: Primary Cash Consideration – { Primary Cash Consideration X Average Price } Minimum Price (iii) Subject to Section 2.2(f), if, prior to the Closing, the Representative notifies the Purchaser that, in the judgment of Representative’s tax advisors, the amount of the Special Cash Consideration would jeopardize the tax free nature of the Merger, the amount of the Special Cash Consideration will be reduced by an amount as agreed upon by the Purchaser and the Representative after consultation with their respective tax advisors to preserve the tax free nature of the Merger (the “Reduction Amount”). The shares of Purchaser Stock into which the shares of Company Stock are converted pursuant to this Section 2.2(a) are referred to in this Agreement as the “Stock Consideration” and, collectively with respect the Cash Consideration, are referred to which such Option is an In-the-Money Optionin this Agreement as the “Merger Consideration.” Schedule 2.2(a) illustrates the operation of this Section 2.2(a).