Common use of Deferred Consideration Clause in Contracts

Deferred Consideration. (a) Not later than 45 calendar days after the Deferred Consideration Period, Akerna shall deliver to the Shareholder Representative the Deferred Consideration Statement. The Deferred Consideration Statement shall be prepared in accordance with U.S. GAAP applied consistently with Ample’s past practices (to the extent such past practices are consistent with U.S. GAAP). (b) The Deferred Consideration Statement shall be accompanied by all relevant backup materials, in detail reasonably acceptable to the Shareholder Representative and such other material reasonably requested by the Shareholder Representative, and a statement setting forth the amount, if any, of Deferred Consideration payable to holders of the CVRs. (c) The Shareholder Representative shall have 20 Business Days to accept or dispute the Deferred Consideration Statement by providing written notice of such acceptance or dispute to Akerna. In the event that Akerna does not receive any written notice of acceptance or dispute of the Deferred Consideration Statement from the Shareholder Representative by the expiry of such 20 Business Day period, the Shareholder Representative will be deemed to have accepted the Deferred Consideration Statement for and on behalf of all holders of CVRs. Notwithstanding the foregoing, the period for the Shareholder Representative to accept or dispute the Deferred Consideration Statement shall be extended by such number of days as is equal to the period from: (i) the date the Shareholder Representative requests other material as contemplated under Section 2.19(b); and (ii) the date all such material is delivered to the Shareholder Representative. (d) In the event the Shareholder Representative disputes the Deferred Consideration Statement, the Shareholder Representative shall provide Akerna the nature and basis of such dispute, and Akerna and the Shareholder Representative shall use their commercially reasonable efforts to reach agreement on the disputed amounts in order to determine the amount of the Deferred Consideration payable, if any. If Akerna and the Shareholder Representative are unable to resolve the dispute within 15 Business Days, then any remaining items in dispute shall be submitted to an independent firm of professional accountants selected by Akerna and the Shareholder Representative, and if the Parties fail to or refuse to mutually select a firm within a further five Business Days after written request therefor by Akerna or the Shareholder Representative, as applicable, such independent firm shall be KPMG LLP. All determinations and calculations pursuant to this subsection 2.19(d) shall consider only those Deferred Consideration Statement calculations on which the Parties have disagreed, shall be in writing, and shall be delivered to Akerna and the Shareholder Representative as promptly as practicable. The determination of the independent firm of professional accountants shall be binding and conclusive upon all Parties and will not be subject to appeal, absent manifest error. The fees and expenses of the independent firm of professional accountants shall be for the account of Akerna up to a maximum amount equal to $60,000; provided that all such fees and expenses in excess of such amount shall be shared equally by the Shareholder Representative on the one hand, and Akerna and Purchaser on the other hand. (e) If Deferred Consideration is payable in accordance with the Deferred Consideration Statement, then Akerna or Purchaser shall promptly (and in any case within five Business Days of the acceptance or final determination of the Deferred Consideration Statement) (the “Deferred Consideration Payment Date”) deliver to the Paying Agent such number of Exchangeable Shares as is equal to the quotient obtained by dividing: (i) the dollar value of the Deferred Consideration payable, by (ii) the 20 day volume weighted average price of the Akerna Shares (converted to Canadian dollars from US dollars using the Exchange Rate as of the Deferred Consideration Payment Date) as quoted on the NASDAQ on the last trading day immediately preceding the issuance of such Exchangeable Shares, to be held and released by the Paying Agent to the holders of CVRs in accordance with the terms of the Rights Indenture. (f) No certificates or other entitlements to fractional Exchangeable Shares shall be issued to any holder of CVRs, and each holder of a CVR otherwise entitled to a fractional interest in an Exchangeable Share will receive the nearest whole number of Exchangeable Shares (with fractions equal to or greater than 0.5 being rounded up and fractions less than 0.5 being rounded down). (g) Akerna covenants and agrees that following the Effective Time and until the expiration of the Deferred Consideration Period, Akerna shall cause Ample to make commercially reasonable efforts to preserve and expand the Recurring Revenue recognized by Ample during the Deferred Consideration Period, and Akerna shall not take, or permit Ample to take, any action or series of actions with respect to the business and affairs of Ample that are intended to lower or otherwise frustrate the Ample Shareholders’ entitlement to receive all or any portion of the Deferred Consideration.

Deferred Consideration. (a) Not later than 45 calendar days after the Deferred Consideration Period, Akerna shall deliver to the Shareholder Representative the Deferred Consideration Statement. The Deferred Consideration Statement shall be prepared in accordance with U.S. GAAP applied consistently with Ample’s past practices (to the extent such past practices are consistent with U.S. GAAP). (b) The Deferred Consideration Statement shall be accompanied by all relevant backup materials, in detail reasonably acceptable to the Shareholder Representative and such other material reasonably requested by the Shareholder Representative, and a statement setting forth the amount, if any, of Deferred Consideration payable to holders of the CVRs. (c) The Shareholder Representative shall have 20 Business Days to accept or dispute the Deferred Consideration Statement by providing written notice of such acceptance or dispute to Akerna. 2.1 In the event that Akerna does not any Deferred Consideration becomes payable in accordance with Schedule 1 of this Agreement (in respect of the Alcatel Deferred Consideration) and/or Schedule 2 of this Agreement (the BluGlass Deferred Consideration), such Deferred Consideration shall be apportioned from time to time (as nearly as practicable) between the Relevant Sellers in the proportion set out opposite their respective names in column 2 of the table set out below: (1) Name (2) Relevant Proportion of Deferred Consideration (%) 2.2 The Relevant Sellers and the Buyer agree that any payments due from the Buyer or the Buyer Group to: 2.2.1 the Relevant Sellers (other than SPP) pursuant to the terms of this Agreement shall be made to the Sellers’ Solicitors by way of payment to the Sellers’ Solicitors Account; and 2.2.2 SPP pursuant to the terms of this Agreement shall be made to SPP’s Solicitors by way of payment to the SPP’s Solicitors’ Account, in each case which shall constitute a full and valid discharge of the Buyer’s obligation to pay such amount and the Relevant Sellers hereby agree that the Sellers’ Solicitors and/or SPP’s Solicitors (as applicable) shall receive any written notice such payment, as agent for the Relevant Sellers and the Buyer shall not be concerned with the basis upon which any such payment shall be distributed between the Relevant Sellers or be answerable for the loss or misapplication thereof. 2.3 Except as otherwise provided for herein, the Buyer shall procure that all monies payable to any Relevant Seller under or pursuant to this Agreement shall be paid in full without any deduction, set-off or counterclaim whatsoever (except as may be required by law, in which case such deduction or withholding shall not exceed the minimum amount required to be deducted or withheld under law except as specifically provided for in this Agreement) and the Buyer irrevocably waives any other right to set-off or counterclaim against, or deduct from, any monies owed by it to any Relevant Seller hereunder. 2.4 All payments of acceptance or dispute of the Deferred Consideration Statement from the Shareholder Representative by the expiry of such 20 Business Day period, the Shareholder Representative will pursuant to this Agreement shall be deemed to have accepted the made in US dollars. Where any Deferred Consideration Statement for and on behalf becomes payable in respect of all holders of CVRs. Notwithstanding a payment which is received or made in a currency other than US dollars (the foregoing“Non-USD Payment”), the period for the Shareholder Representative to accept or dispute the Deferred Consideration Statement shall be extended by such number of days as is equal to the period from: (i) the date the Shareholder Representative requests other material as contemplated under Section 2.19(b); and (ii) the date all such material is delivered to the Shareholder Representative. (d) In the event the Shareholder Representative disputes the Deferred Consideration Statement, the Shareholder Representative shall provide Akerna the nature and basis of such dispute, and Akerna and the Shareholder Representative shall use their commercially reasonable efforts to reach agreement on the disputed amounts in order to determine the amount of the Deferred Consideration payable, if any. If Akerna shall be converted into US dollars at the prevailing exchange rate of the Target Group’s main relationship bank on the first Business Day following receipt thereof and the Shareholder Representative are unable to resolve the dispute within 15 Business Daysamount received upon such conversion, then less any remaining items in dispute bank or other related charges or fees and other deductions provided for herein shall be submitted to an independent firm of professional accountants selected by Akerna and the Shareholder Representative, and if the Parties fail to or refuse to mutually select a firm within a further five Business Days after written request therefor by Akerna or the Shareholder Representative, as applicable, such independent firm shall be KPMG LLP. All determinations and calculations pursuant to this subsection 2.19(d) shall consider only those Deferred Consideration Statement calculations on which the Parties have disagreed, shall be in writing, and shall be delivered to Akerna and the Shareholder Representative as promptly as practicable. The determination of the independent firm of professional accountants shall be binding and conclusive upon all Parties and will not be subject to appeal, absent manifest error. The fees and expenses of the independent firm of professional accountants shall be for the account of Akerna up to a maximum amount equal to $60,000; provided that all such fees and expenses in excess of such amount shall be shared equally by the Shareholder Representative on the one hand, and Akerna and Purchaser on the other hand. (e) If Deferred Consideration is payable in accordance with the Deferred Consideration Statement, then Akerna or Purchaser shall promptly (and in any case within five Business Days of the acceptance or final determination of the Deferred Consideration Statement) (the “Deferred Consideration Payment Date”) deliver paid to the Paying Agent such number of Exchangeable Shares as is equal to the quotient obtained by dividing: (i) the dollar value of the Deferred Consideration payable, by (ii) the 20 day volume weighted average price of the Akerna Shares (converted to Canadian dollars from US dollars using the Exchange Rate as of the Deferred Consideration Payment Date) as quoted on the NASDAQ on the last trading day immediately preceding the issuance of such Exchangeable Shares, to be held and released by the Paying Agent to the holders of CVRs in accordance with the terms of the Rights Indenturerelevant recipient. (f) No certificates or other entitlements to fractional Exchangeable Shares shall be issued to any holder of CVRs, and each holder of a CVR otherwise entitled to a fractional interest in an Exchangeable Share will receive the nearest whole number of Exchangeable Shares (with fractions equal to or greater than 0.5 being rounded up and fractions less than 0.5 being rounded down). (g) Akerna covenants and agrees that following the Effective Time and until the expiration of the Deferred Consideration Period, Akerna shall cause Ample to make commercially reasonable efforts to preserve and expand the Recurring Revenue recognized by Ample during the Deferred Consideration Period, and Akerna shall not take, or permit Ample to take, any action or series of actions with respect to the business and affairs of Ample that are intended to lower or otherwise frustrate the Ample Shareholders’ entitlement to receive all or any portion of the Deferred Consideration.

Deferred Consideration. (a) Not later than 45 calendar days after the Any Deferred Consideration Periodshall be paid by Purchaser to Seller in four installments, Akerna if earned, based the Annual Adjusted Earnings of the Company for each of the years ended December 31, 1999, 2000, 2001 and 2002 (the "PAYMENT YEARS"). Within 90 days following the end of each Payment Year, Purchaser shall deliver to Seller its written determination of the Shareholder Representative Annual Adjusted Earnings for such Payment Year (the Deferred Consideration Statement. The Deferred Consideration Statement shall be prepared in accordance "PURCHASER DETERMINATION NOTICE"), together with U.S. GAAP applied consistently with Ample’s past practices (to a copy of the extent Company's financial statements for such past practices are consistent with U.S. GAAP). (b) The Deferred Consideration Statement shall be accompanied Payment Year audited by all relevant backup materials, in detail reasonably acceptable to the Shareholder Representative Company's independent auditors and such other material working papers as may be reasonably requested by the Shareholder Representative, and a statement setting forth the amount, Seller. Seller shall advise Purchaser if any, of Deferred Consideration payable to holders Seller agrees or disagrees with Purchaser's determination of the CVRs. (c) The Shareholder Representative Annual Adjusted Earnings for each Payment Year. If Seller fails to so advise Purchaser within 20 days following the delivery of the Purchaser Determination Notice, it shall be deemed that Seller shall have 20 Business Days to accept or dispute accepted Purchaser's determination of the Deferred Consideration Statement by providing written Annual Adjusted Earnings for such Payment Year. If Seller disagrees with Purchaser's determination, Seller shall give notice of such acceptance or dispute to Akerna. In disagreement (a "SELLER DISAGREEMENT NOTICE"), which notice shall specify the event that Akerna does not receive any written notice of acceptance or dispute Seller's determination of the Deferred Consideration Statement from the Shareholder Representative by the expiry of such 20 Business Day period, the Shareholder Representative will be deemed to have accepted the Deferred Consideration Statement for and on behalf of all holders of CVRsdisputed Annual Adjusted Earnings. Notwithstanding the foregoing, the period for the Shareholder Representative to accept or dispute the Deferred Consideration Statement If a Seller Disagreement Notice shall be extended by such number of days as is equal to the period from: (i) the date the Shareholder Representative requests other material as contemplated under Section 2.19(b); delivered, Purchaser and (ii) the date all such material is delivered to the Shareholder Representative. (d) In the event the Shareholder Representative disputes the Deferred Consideration Statement, the Shareholder Representative Seller shall provide Akerna the nature and basis of such dispute, and Akerna and the Shareholder Representative shall use their commercially reasonable efforts attempt to reach agreement on the disputed amounts Annual Adjusted Earnings. If Purchaser and Seller are unable to reach an agreement within 15 days, either Purchaser or Seller may submit the disagreement to arbitration in order accordance with the procedures set forth in Section 2(d) above. Within 15 days following determination of the Annual Adjusted Earnings for each Payment Year (either by agreement or by arbitration, as the case may be), a Deferred Consideration installment shall be paid, if earned, to determine Seller as follows. (i) If the amount Annual Adjusted Earnings for a Payment Year minus the Shortfall, if any, for the immediately preceding Payment Year are less than or equal to $1,500,000, then the Deferred Consideration installment for such Payment Year will not be due and no payment shall be made. If a Deferred Consideration installment payment is not due with respect to any Payment Year, then such Deferred Consideration installment payment will be forfeited and not payable in an succeeding Payment Year, except as specifically set forth below. (ii) If the Annual Adjusted Earnings for a Payment Year minus the Shortfall, if any, for the immediately preceding Payment Year are greater than $1,500,000, Purchaser will pay to Seller, in full satisfaction of the Deferred Consideration payableinstallment for such Payment Year, an amount equal to the product of the Purchase Percentage multiplied by the remainder of (A) the lesser of (x) the Annual Adjusted Earnings for such Payment Year minus the Shortfall, if any, for the immediately preceding Payment Year and (y) the 1998 Adjusted Earnings, minus (B) $1,500,000. Notwithstanding the foregoing, Purchasers will pay to Seller a minimum Deferred Consideration installment for the Payment Year ended December 31, 1999 of at least $196,000. If Akerna and the Shareholder Representative are unable to resolve Annual Adjusted Earnings for the dispute within 15 Business DaysPayment Year ended December 31, 1999 is greater than the 1998 Adjusted Earnings, then any remaining items Purchaser will pay to Seller, in dispute shall be submitted to an independent firm full satisfaction of professional accountants selected by Akerna and the Shareholder Representative, and if the Parties fail to or refuse to mutually select a firm within a further five Business Days after written request therefor by Akerna or the Shareholder Representative, as applicable, such independent firm shall be KPMG LLP. All determinations and calculations pursuant to this subsection 2.19(d) shall consider only those Deferred Consideration Statement calculations on which installment for the Parties have disagreedPayment Year ended 1999, shall be in writingan amount equal to the product of the Purchase Percentage multiplied by the remainder of (A) the lesser of (x) the Annual Adjusted Earnings for such Payment Year and (y) the 1998 Adjusted Earnings plus $245,000, and shall be delivered to Akerna and the Shareholder Representative as promptly as practicableminus (B) $1,500,000. The determination of the independent firm Shortfall, if any, for the Payment Year ended December 31, 1999 shall not be affected by this paragraph. If the Deferred Consideration installment payment for the Payment Year ended December 31, 1999 is not paid in full (i.e. if the Annual Adjusted Earnings for the Payment Year ended December 31, 1999 are less than the 1998 Adjusted Earnings), then the portion of professional accountants such Deferred Consideration installment payment not paid based on the Annual Adjusted Earnings for the Payment Year ended December 31, 1999 shall be binding added to the Deferred Consideration installment payment that may be earned for the Payment Year ended December 31, 2000 (the "COMBINED DEFERRED CONSIDERATION INSTALLMENT"). In such event and conclusive upon all Parties and if the Annual Adjusted Earnings for the Payment Year ended December 31, 2000 minus the Shortfall, if any, for the Payment Year ended December 1999 is greater than $1,500,000, Purchaser will not be subject pay to appealSeller, absent manifest error. The fees and expenses in full satisfaction of the independent firm of professional accountants shall be for the account of Akerna up to a maximum Combined Deferred Consideration Installment, an amount equal to the product of the Purchase Percentage multiplied by the remainder of (A) the lesser of (x) the Annual Adjusted Earnings for the Payment Year ended December 31, 2000 minus the Shortfall, if any, for the Payment Year ended December 31, 1999, and (y) the 1998 Adjusted Earnings plus the 1999 Carryforward Amount (as defined below), minus (B) $60,000; provided 1,500,000. Any amount payable to Seller pursuant to the foregoing sentence that all such fees and expenses in excess would not have been payable to Seller if clause (y) of such amount the above formula was amended to include only the 1998 Adjusted Earnings, shall be shared equally reduced (but not below zero) by the Shareholder Representative all amounts paid on the one hand, and Akerna and Purchaser on the other hand. (e) If Deferred Consideration is payable in accordance with the Deferred Consideration Statement, then Akerna or Purchaser shall promptly (and in any case within five Business Days account of the acceptance or final determination of the Deferred Consideration Statement) (the “Deferred Consideration Payment Date”) deliver to the Paying Agent such number of Exchangeable Shares as is Year ended December 31, 1999. The "1999 CARRYFORWARD AMOUNT" shall be an amount equal to the quotient obtained by dividingremainder of (1) the 1998 Adjusted Earnings, minus (2) $1,500,000. Certain examples designed to provide guidance in calculating Deferred Consideration are attached hereto as EXHIBIT D. Seller acknowledges that: (i) the dollar value Company has complete control over its business and operations, including whether to enter into or not enter into contracts, the terms and conditions of any such contracts in the development of new products, the timing of product introductions, marketing of products, advertising and promotion of products, allocation of Company resources and employment of personnel; and (ii) decisions made by the Company may materially and adversely affect Annual Adjusted Earnings, which in turn could affect the Deferred Consideration payablepayable to Seller in any Payment Year, by (ii) subject to the 20 day volume weighted average price formula of calculating Deferred Consideration payments set forth above. Seller agrees that all decisions of the Akerna Shares (converted to Canadian dollars from US dollars using the Exchange Rate as of the Deferred Consideration Payment Date) as quoted on the NASDAQ on the last trading day immediately preceding the issuance of such Exchangeable Shares, to be held and released by the Paying Agent to the holders of CVRs in accordance with the terms of the Rights Indenture. (f) No certificates or other entitlements to fractional Exchangeable Shares shall be issued to any holder of CVRs, and each holder of a CVR otherwise entitled to a fractional interest in an Exchangeable Share will receive the nearest whole number of Exchangeable Shares (with fractions equal to or greater than 0.5 being rounded up and fractions less than 0.5 being rounded down). (g) Akerna covenants and agrees that following the Effective Time and until the expiration of the Deferred Consideration Period, Akerna shall cause Ample to make commercially reasonable efforts to preserve and expand the Recurring Revenue recognized by Ample during the Deferred Consideration Period, and Akerna shall not take, or permit Ample to take, any action or series of actions Company with respect to the its business and affairs operations shall be final and binding on Seller, and Seller shall have no claim against the Company or the Purchaser that the amount of Ample that are intended to lower or otherwise frustrate Deferred Consideration paid in any period would have been greater if the Ample Shareholders’ entitlement to receive all or any portion of the Deferred ConsiderationCompany had made different decisions.

Deferred Consideration. (a) Not later than 45 calendar days after To the Deferred Consideration Period, Akerna shall deliver extent that from time to time the Qualifying Parent Equityholders have received in aggregate Realized Cash Proceeds equal to the Shareholder Representative Threshold Amount: (i) Parent shall not, and shall cause the Deferred Consideration Statement. The Deferred Consideration Statement shall be prepared Company and its Subsidiaries not to, make any dividend, distribution or other payment to (or on behalf of, or for the benefit of) any Qualifying Parent Equityholder that would constitute Realized Cash Proceeds unless and until the Sellers have received the Maximum Earn-Out Payment in accordance with U.S. GAAP applied consistently this Section 2.14; and (ii) until the Sellers have received the Maximum Earn-Out Payment in accordance with Ample’s past practices this Section 2.14, Parent shall pay, or cause to be paid, an amount in cash equal to 100% of any amounts that would be incremental Realized Cash Proceeds in excess of the Threshold Amount (any such payments not to exceed individually or in the aggregate the Maximum Earn-Out Payment, an “Earn-Out Payment”) to the extent Sellers in accordance with their respective Pro Rata Share of such past practices are consistent with U.S. GAAP)Earn-Out Payment and the terms and conditions of Section 2.3 and Section 2.8. (b) The Deferred Consideration Statement No Earn-Out Payment shall be accompanied by all relevant backup materialsmade unless and until there has been Realized Cash Proceeds equal to the Threshold Amount. Notwithstanding anything to the contrary, in detail reasonably acceptable no event will the aggregate amount of Earn-Out Payments made by Parent or its designee under this Agreement exceed an aggregate amount equal to the Shareholder Representative and such other material reasonably requested by the Shareholder Representative, and a statement setting forth the amount, if any, of Deferred Consideration payable to holders of the CVRsMaximum Earn-Out Payment. (c) Until such time as the obligations of the Parties under this Section 2.14 shall cease pursuant to Section 2.14(h), not later than (i) twenty (20) Business Days prior to any receipt by a Qualifying Parent Equityholder of Realized Cash Proceeds (where such receipt would result in aggregate Realized Cash Proceeds exceeding the Threshold Amount), if the transaction resulting in such receipt is publicly disclosed, at such time, or (ii) if not so disclosed, at the Closing of the transaction resulting in such receipt, in the case of each of the foregoing clauses (i) and (ii), Parent shall deliver, or cause to be delivered, to the Seller Representative a written notice (an “Earn-Out Notice”) setting forth the following with respect to such Qualifying Parent Equityholder receiving Realized Cash Proceeds and all Qualifying Parent Equityholders as at such time (A) a calculation of the aggregate amount of Realized Cash Proceeds of such Qualifying Parent Equityholder and all Qualifying Parent Equityholders; (B) the amount of such Qualifying Parent Equityholder’s and all Qualifying Parent Equityholders receipt(s) of Realized Cash Proceeds; (C) the amount of the Qualifying Parent Equityholders’ Cumulative Investment; and (D) the Earn-Out Payment, if any, payable in respect thereof, in each case, calculated in a manner consistent with the terms of this Agreement and accompanied by reasonable supporting detail with respect to the calculation of such amounts. (d) Parent will ensure that any transaction that would involve the realization of Realized Cash Proceeds by Qualifying Parent Equityholders in excess of the Threshold Amount is structured and effected so as to provide that on closing of such transaction (if not before), the full amount of any proceeds payable to (or on behalf of, or for the benefit of) any Qualifying Parent Equityholders is paid to the Sellers in a manner contemplated by Section 2.14(a). (e) The Shareholder Seller Representative and its advisors and representatives shall have reasonable access during regular business hours to such documents, books, records, work papers, facilities, personnel and other information (including in electronic format, if available) and employees of the Surviving Company and its Subsidiaries, in each case, to the extent used or involved in the preparation of an Earn-Out Notice, and as the Seller Representative, its advisors and representatives may reasonably require to complete its review of such Earn-Out Notice and the components thereof (in such a manner so as not to unreasonably interfere with the conduct of the business of the Surviving Company or its Subsidiaries), subject, if required by the accountants of the Surviving Company or its Subsidiaries, to the prompt execution of a customary (in form and content) access letter. (f) Within 30 days following delivery by the Surviving Company of an Earn-Out Notice (the “Earn-Out Objection Period”), the Seller Representative shall have 20 Business Days to accept either inform the Surviving Company in writing that such Earn-Out Notice is acceptable, or dispute the Deferred Consideration Statement by providing deliver written notice (the “Earn-Out Dispute Notice”) to the Surviving Company notifying the Surviving Company that the Seller Representative disagrees with the calculations set forth in such Earn-Out Notice and setting forth the Seller Representative’s calculation of the disputed amounts and, a description in reasonable detail of the grounds for each such acceptance disagreement (each such item or dispute amount as to Akernawhich the Seller Representative disagrees and set forth in the Earn-Out Dispute Notice, an “Earn-Out Item of Disagreement”). Except for those Earn-Out Items of Disagreement set forth in an Earn-Out Dispute Notice delivered during the Earn-Out Objection Period, the Seller Representative shall be deemed to have agreed with all other items and amounts set forth in such Earn-Out Notice, which items and amounts shall be final, conclusive and binding upon all of the parties hereto. In the event an Earn-Out Dispute Notice is delivered to the Surviving Company, the Surviving Company and the Seller Representative shall attempt in good faith to resolve such dispute, and any mutual agreement resulting from such good faith attempt shall be final, conclusive and binding on the parties. (g) If the Surviving Company and the Seller Representative, notwithstanding such good faith attempt, fail to resolve such dispute within 15 calendar days after the Seller Representative delivers the Earn-Out Dispute Notice, then the Surviving Company and the Seller Representative jointly shall engage the Independent Expert to resolve any Earn-Out Items of Disagreement that Akerna does not receive any remain unresolved in accordance with the standards set forth in this Section. The Surviving Company and the Seller Representative shall use all reasonable endeavors to cause the Independent Expert to render a written notice of acceptance or dispute decision resolving the matters submitted to the Independent Expert within 30 calendar days of the Deferred Consideration Statement from making of such submission and each of the Shareholder Surviving Company and the Seller Representative shall, and shall cause its representatives to, cooperate with the Independent Expert so as to enable it to make its determination as quickly and as accurately as practicable. The Surviving Company and the Seller Representative agree that the engagement of the Independent Expert shall provide that neither party shall have any ex parte communications with the Independent Expert. The Surviving Company and the Seller Representative shall direct the Independent Expert to decide all remaining Earn-Out Items of Disagreement solely based on the terms and standards set forth in this Agreement and the written submissions of the Surviving Company and the Seller Representative and their respective representatives, and shall not be based on independent review, and each of the Surviving Company and the Seller Representative shall have the opportunity to respond in writing to the other’s written submission. The Independent Expert shall only address Earn-Out Items of Disagreement and shall not adjust any amounts or items that are not in dispute by the expiry parties hereto; provided that the amount of any Earn-Out Items of Disagreement and the Earn-Out Payment as so determined by the Independent Expert shall not be greater than the greatest value for such item claimed by either party or smaller than the smallest value for such item claimed by either party. Prior to the Independent Expert’s final determination under this Section 2.14(g), (A) Parent, on the one hand, and the Seller Representative, on the other hand, shall each pay 50% of any retainer paid to the Independent Expert, and (B) during the engagement of the Independent Expert, the Independent Expert will ▇▇▇▇ 50% of the total charges to each of Parent, on the one hand, and Seller Representative, on the other hand. In connection with the Independent Expert’s final determination under this Section 2.14(g), the Independent Expert shall also determine, pursuant to the terms of this Section 2.14(g) and taking into account all fees and expenses already paid by each of Parent and the Seller Representative, as of the date of such 20 Business Day perioddetermination, the Shareholder Representative allocation of its fees and expenses between Parent and the Seller Representative, which such determination shall be conclusive and binding upon the parties hereto. All determinations made by the Independent Expert will be deemed final, conclusive and binding on the parties hereto. (h) The obligations of the Parties under this Section 2.14 shall cease and be of no further force and effect from and after the earliest to have accepted the Deferred Consideration Statement for and on behalf occur of all holders of CVRs. Notwithstanding the foregoing, the period for the Shareholder Representative to accept or dispute the Deferred Consideration Statement shall be extended by such number of days as is equal to the period from: (i) the date the Shareholder Representative requests other material as contemplated under Section 2.19(b); on which no Qualifying Parent Equityholder, directly or indirectly, owns beneficially or of record any Parent Securities (but subject to satisfaction of any obligations arising at or prior to such time, including any obligation to pay any Earn-Out Payment) and (ii) the date all such material is delivered as of which an aggregate amount equal to the Shareholder RepresentativeMaximum Earn-Out Payment has been paid hereunder. (di) In The Parties (including the event the Shareholder Seller Representative disputes the Deferred Consideration Statement, the Shareholder Representative shall provide Akerna the nature on behalf of itself in its capacity as a Seller and basis of such dispute, and Akerna and the Shareholder Representative shall use their commercially reasonable efforts to reach agreement on the disputed amounts in order to determine the amount behalf of the Deferred Consideration payable, if any. If Akerna other Sellers) acknowledge and agree that in connection with the Shareholder Representative are unable to resolve the dispute within 15 Business Days, then any remaining items in dispute shall be submitted to an independent firm of professional accountants selected by Akerna Earn-Out Payment and the Shareholder Representative, and if the Parties fail to or refuse to mutually select a firm within a further five Business Days after written request therefor by Akerna or the Shareholder Representative, as applicable, such independent firm shall be KPMG LLP. All determinations and calculations pursuant to this subsection 2.19(d) shall consider only those Deferred Consideration Statement calculations on which the Parties have disagreed, shall be in writing, and shall be delivered to Akerna and the Shareholder Representative as promptly as practicable. The determination of the independent firm of professional accountants shall be binding and conclusive upon all Parties and will not be subject to appealthe final sentence of this Section 2.14(i), absent manifest error. The fees and expenses of the independent firm of professional accountants shall be for the account of Akerna up to a maximum amount equal to $60,000; provided that all such fees and expenses in excess of such amount shall be shared equally by the Shareholder Representative on the one hand, and Akerna and Purchaser on the other hand. (e) If Deferred Consideration is payable in accordance with the Deferred Consideration Statement, then Akerna or Purchaser shall promptly (and in any case within five Business Days of the acceptance or final determination of the Deferred Consideration Statement) (the “Deferred Consideration Payment Date”) deliver to the Paying Agent such number of Exchangeable Shares as is equal to the quotient obtained by dividing: (i) the dollar value Surviving Company and its post-Closing Affiliates (including Parent) shall have the right to operate its and their respective businesses, in the sole discretion of the Deferred Consideration payableSurviving Company and its Affiliates and make all decisions with respect to the Surviving Company and its and its Affiliates’ businesses (including decisions with respect to the commercial viability of a product, by development budgets and costs and potential market for products) in the sole discretion of the Surviving Company and its Affiliates; (ii) the 20 day volume weighted average price Surviving Company and its post-Closing Affiliates (including Parent) shall have no obligation to operate the Surviving Company and its businesses in order to achieve or maximize any amount of Realized Cash Proceeds, the Threshold Amount, or any Earn-Out Payment; (iii) any Earn-Out Payments and the receipt by the Qualifying Parent Equityholders of any Realized Cash Proceeds are speculative and are subject to numerous factors outside the control of the Akerna Shares Surviving Company, Parent and their respective Affiliates; (converted to Canadian dollars from US dollars using iv) there is no assurance that the Exchange Rate as Sellers will receive any Earn-Out Payments; (v) none of the Deferred Consideration Payment Date) as quoted on Surviving Company, Parent, nor any of the NASDAQ on the last trading day immediately preceding the issuance of such Exchangeable Shares, to be held and released by the Paying Agent Parent Related Parties owe a fiduciary duty or express or implied duty to the holders of CVRs in accordance with Sellers or the terms Seller Representative (and any such fiduciary duty is irrevocably waived); (vi) the contingent right of the Rights Indenture. (f) No certificates Sellers to receive any Earn-Out Payment is not an investment in the Surviving Company, Parent or other entitlements to fractional Exchangeable Shares any of its Affiliates and such rights in this Section 2.14 shall be issued not entitle any Seller or the Seller Representative to any holder of CVRs, and each holder of a CVR otherwise entitled to a fractional interest in rights as an Exchangeable Share will receive the nearest whole number of Exchangeable Shares (with fractions equal to or greater than 0.5 being rounded up and fractions less than 0.5 being rounded down). (g) Akerna covenants and agrees that following the Effective Time and until the expiration equityholder of the Deferred Consideration PeriodSurviving Company, Akerna shall cause Ample Parent or any of its Affiliates; (vii) the parties intend the express provisions of this Agreement to make commercially reasonable efforts to preserve govern all of their rights and expand the Recurring Revenue recognized by Ample during the Deferred Consideration Periodobligations, and Akerna shall not takeif any, or permit Ample to take, any action or series of actions with respect to the Earn-Out Payments contemplated by this Section 2.14; (viii) nothing herein will prohibit the Surviving Company, Parent, or their respective Affiliates from engaging in any business and affairs of Ample that are intended to lower or opportunity either with or without the Surviving Company or its Affiliates or acquiring, entering into joint ventures, investing in, or otherwise frustrate cooperating with other Persons, including Persons that may have interests adverse to or otherwise compete, directly or indirectly, with the Ample ShareholdersSurviving Company and its Subsidiaries; (ix) neither the Surviving Company nor any of its Affiliates is under any obligation to continue any aspect of the Surviving Company’s and its Subsidiaries’ entitlement businesses or to operate the Surviving Company, its Subsidiaries or their respective businesses consistent with past practice; (x) none of the Sellers or the Seller Representative (on behalf of itself or any Seller) shall have any right to claim or assert any lost Earn-Out Payment or other damages pursuant to this Agreement or otherwise, including this Section 2.14 as a result of any conduct, decisions or other actions or inactions of the Surviving Company, Parent or their respective Affiliates (other than a claim for breach of the payment obligations under this Section 2.14 to the extent any Earn-Out Payment is payable hereunder and not paid when due and payable); (xi) nothing shall prohibit, prevent or otherwise restrict the Surviving Company or any of its Affiliates from incurring any Lien with respect to the Surviving Company or its Affiliates, any equity interest therein or any asset thereof or otherwise restrict the secured party in whose favor such Lien is granted from enforcing its rights in respect of such Lien. Notwithstanding anything to the contrary herein or otherwise, the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against the Surviving Company, Parent, or any Qualifying Parent Equityholder or any of the Parent Related Parties for payment of any of the Earn-Out Payments is to seek the payment from the Parent or the Company in accordance with this Section 2.14. Parent agrees that it shall not take any action the principal purpose or intent of which is to circumvent or reduce the payments contemplated by this Section 2.14. (j) The rights of the Sellers under this Section 2.14 are personal to each Seller and, notwithstanding anything to the contrary in this Agreement or otherwise, no rights or interests of any Seller under this Section 2.14, including any rights to receive all any Earn-Out Payment due pursuant hereto, may be sold, assigned, transferred, in whole or in part by any portion Seller (other than by operation of Law or the Deferred Laws of descent) to any Person and any attempted sale, assignment or transfer shall be null and void ab initio. (k) All payments pursuant to this Section 2.14 shall be treated by the Parties for applicable Tax purposes as adjustments to the Total Merger Consideration, unless otherwise required by Law.

Deferred Consideration. 5.1 If following exercise of the Put Option or the Call Option but on or prior to the Expiry Date, either (i) MEIF sells, or enters into a binding agreement to sell, any of the Option Securities acquired from MIC to a person who is not an Affiliate of MEIF or (ii) the Company directly or indirectly sells, or enters into a binding agreement to sell, all or part of the South East Water business (in each case a “Relevant Sale”), the price payable in respect of the Option Securities shall be adjusted in accordance with this clause provided that: (a) Not later than 45 calendar days any conditions to which the Relevant Sale is subject are satisfied or waived (whether before or after the Deferred Consideration Period, Akerna shall deliver to the Shareholder Representative the Deferred Consideration Statement. The Deferred Consideration Statement shall be prepared in accordance with U.S. GAAP applied consistently with Ample’s past practices (to the extent such past practices are consistent with U.S. GAAPExpiry Date).; and (b) The Deferred Consideration Statement in the event that MEIF engages in a sale of only part of its interest in the Company on or prior to the Expiry Date, MEIF shall be accompanied deemed to have sold the Option Securities acquired from MIC on a pro-rata basis with the securities in the Company held by all relevant backup materials, MEIF at the time of the sale that were not acquired from MIC and the provisions of this clause shall apply in detail reasonably acceptable respect of each such sale of part of MEIF’s interest in the Company entered into on or prior to the Shareholder Representative Expiry Date and such other material reasonably requested “Relevant Sale” shall be construed accordingly. 5.2 For the purposes of this Agreement, the Adjusted Amount shall be the sum of: (a) an amount equal to the MEIF Sale Proceeds; (b) less an amount equal to the Option Price multiplied by the Shareholder Representative, and a statement setting forth the amount, if any, of Deferred Consideration payable to holders of the CVRs.Relevant Percentage; (c) The Shareholder Representative shall have 20 Business Days to accept or dispute the Deferred Consideration Statement by providing written notice of such acceptance or dispute to Akerna. In the event that Akerna does not receive any written notice of acceptance or dispute of the Deferred Consideration Statement from the Shareholder Representative by the expiry of such 20 Business Day period, the Shareholder Representative will be deemed to have accepted the Deferred Consideration Statement for and on behalf of all holders of CVRs. Notwithstanding the foregoing, the period for the Shareholder Representative to accept or dispute the Deferred Consideration Statement shall be extended by such number of days as is less an amount equal to the period from: Acquisition Taxation Costs multiplied by the Relevant Percentage; (d) less an amount equal to the Transaction Costs; (e) less an amount equal to the Sale Taxation Costs; (f) less an amount equal to the Bridge Facility Costs multiplied by the Relevant Percentage, and the “Relevant Percentage” shall be either (i) the date percentage of the Shareholder Representative requests other material as contemplated under Section 2.19(b); and Option Securities acquired by MEIF from MIC deemed to have been sold by MEIF pursuant to clause 5.1 or (ii) the date all such material is delivered to percentage of the Shareholder RepresentativeSouth East Water business sold directly or indirectly by the Company. (d) In the event the Shareholder Representative disputes the Deferred Consideration Statement, the Shareholder Representative 5.3 MEIF shall provide Akerna the nature and basis of such dispute, and Akerna and the Shareholder Representative shall use their commercially reasonable efforts to reach agreement on the disputed amounts in order to determine the amount MIC (a) with its calculation of the Deferred Consideration payable, if any. If Akerna Adjusted Amount and the Shareholder Representative are unable (b) with such information as MIC may reasonably request to resolve the dispute within 15 Business Days, then any remaining items in dispute shall be submitted enable MIC to an independent firm of professional accountants selected by Akerna and the Shareholder Representative, and if the Parties fail to or refuse to mutually select a firm within a further five Business Days after written request therefor by Akerna or the Shareholder Representative, as applicable, such independent firm shall be KPMG LLP. All determinations and calculations pursuant to this subsection 2.19(d) shall consider only those Deferred Consideration Statement calculations on which the Parties have disagreed, shall be in writing, and shall be delivered to Akerna and the Shareholder Representative as promptly as practicable. The determination verify MEIF’s calculation of the independent firm of professional accountants Adjusted Amount. 5.4 If the Adjusted Amount is a positive sum, MEIF shall be binding and conclusive upon all Parties and will not be subject pay to appeal, absent manifest error. The fees and expenses of the independent firm of professional accountants shall be for the account of Akerna up to a maximum MIC an amount equal to $60,000; provided that all such fees the Adjusted Amount within 5 Business Days of receipt by MEIF (or its Affiliate) of the proceeds of the Relevant Sale and expenses in excess of such amount shall be shared equally paid by way of increase to the Shareholder Representative on the one hand, and Akerna and Purchaser on the other hand. (e) If Deferred Consideration is payable Option Price in accordance with clause 4.1(d). 5.5 If the Deferred Consideration StatementAdjusted Amount is a negative sum, then Akerna or Purchaser provided the Relevant Sale was on arms-length terms, MIC shall promptly (and in any case pay to MEIF an amount equal to the Adjusted Amount within five 5 Business Days of the acceptance or final determination completion of the Deferred Consideration Statement) (the “Deferred Consideration Payment Date”) deliver Relevant Sale and such amount shall be paid by way of decrease to the Paying Agent such number of Exchangeable Shares as is equal to the quotient obtained by dividing: (i) the dollar value of the Deferred Consideration payable, by (ii) the 20 day volume weighted average price of the Akerna Shares (converted to Canadian dollars from US dollars using the Exchange Rate as of the Deferred Consideration Payment Date) as quoted on the NASDAQ on the last trading day immediately preceding the issuance of such Exchangeable Shares, to be held and released by the Paying Agent to the holders of CVRs Option Price in accordance with clause 4.1(d). 5.6 Following exercise of the Put Option or Call Option and prior to the Expiry Date, MEIF undertakes not to sell or otherwise dispose of (or enter into a binding agreement to sell or otherwise dispose of) its interest in the Option Securities to an Affiliate of MEIF, unless such Affiliate agrees to be bound by the terms of the Rights Indenturethis Clause 5 on terms reasonably satisfactory to MIC. (f) No certificates or other entitlements to fractional Exchangeable Shares shall be issued to any holder of CVRs, and each holder of a CVR otherwise entitled to a fractional interest in an Exchangeable Share will receive the nearest whole number of Exchangeable Shares (with fractions equal to or greater than 0.5 being rounded up and fractions less than 0.5 being rounded down). (g) Akerna covenants and agrees that following the Effective Time and until the expiration of the Deferred Consideration Period, Akerna shall cause Ample to make commercially reasonable efforts to preserve and expand the Recurring Revenue recognized by Ample during the Deferred Consideration Period, and Akerna shall not take, or permit Ample to take, any action or series of actions with respect to the business and affairs of Ample that are intended to lower or otherwise frustrate the Ample Shareholders’ entitlement to receive all or any portion of the Deferred Consideration.