Common use of Additional Purchase Price Adjustment Clause in Contracts

Additional Purchase Price Adjustment. (a) Seller acknowledges that the fundamental economic benefits that Purchaser expects to receive from the Transaction are predicated on the Business having a sales perimeter of at least the 2017 Volume Threshold Amount in the 2017 calendar year, and that the covenants and agreements set forth in this Section 1.15 are essential to allow Purchaser to achieve these fundamental economic benefits. (b) Set forth on Schedule 1.15(b) is a list of the identified volume of cans and ends (“Units”) expected to be sold by the Business in the 2017 calendar year, including the customers to which such Units will be sold, the Facility in which such Units are manufactured and from which they will be shipped to such customers. (c) As promptly as practicable after December 31, 2017 (but in any event by March 15, 2018), Purchaser shall deliver to Seller a report (the “2017 Actual Volume Report”) setting forth the aggregate number of Units actually sold, brokered, assigned to, or contract manufactured by Purchaser or its Affiliates (including the Purchased Entities) from the Facilities during the 2017 calendar year (the “2017 Actual Volume”). If Seller has any objections to the amounts reflected in the 2017 Actual Volume Report, it shall notify Purchaser in writing of its objections within 30 days of its receipt of such report, in which case, the provisions of Section 1.6(e) shall apply mutatis mutandi to the resolution of any such dispute. If Seller has not objected to such report within such 30 day period, the 2017 Actual Volume shall be deemed to be as reflected in such report delivered by Purchaser. (d) If the 2017 Actual Volume is deemed or determined to be less than the 2017 Volume Threshold Amount, then no later than 10 Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of the 2017 Actual Volume in accordance with Section 1.15(c), Seller shall pay to Purchaser an amount equal to the 2017 Volume Shortfall Amount; provided that in no event shall the payment to be made by Seller to Purchaser under this subsection (d) exceed $75 million. (e) If the 2017 Actual Volume is deemed or determined to be greater than the 2017 Volume Threshold Amount then, subject to Section 1.15(f), no later than 10 Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of the 2017 Actual Volume in accordance with Section 1.15(c), Purchaser shall pay to Seller an amount equal to the 2017 Volume Surplus Amount; provided that in no event shall the payment to be made by Purchaser to Seller under this subsection (e) exceed $75 million. (f) If Purchaser determines, and so notifies Seller in writing, that the 2017 Actual Volume has been reduced as a direct result of the sale by Seller or any of its Affiliates of Units to any of the customers at the customer locations listed on Schedule 1.15(b) with respect to such customers (as reflected in the 2017 Actual Volume Report and subject to the dispute resolution provisions described in Section 1.15(c)), then, subject to Section 1.15(d) (but without duplication of any volumes attributable to payments made thereunder), no later than 10 Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of the number of Units so sold by Seller or any of its Affiliates in accordance with Section 1.15(c), Seller shall pay to Purchaser (x) the Seller Volume Payment Amount; provided that the amount (if any) payable by Seller to Purchaser under Section 1.15(d) and this Section 1.15(f) shall be reduced by, or to the extent there is no amount payable by Seller to Purchaser under Section 1.15(d) or this Section 1.15(f) (after taking into account the reduction (if any) to any amount payable by Seller to Purchaser as a result of the application of this proviso), Purchaser shall pay to Seller (solely to the extent a reduction (if any) for such amount payable has not already been made hereunder), the Purchaser Volume Payment Amount with respect to any Units sold by Purchaser or its Affiliates (including the Purchased Entities) in the 2017 calendar year from volume expected to be retained by Seller or its Affiliates in 2017 after giving effect to the Transaction (the “Seller Retained Volume”). If Seller determines, and so notifies Purchaser in writing, that Purchaser is required to make a payment to Seller under this Section 1.15(f), it shall, as promptly as practicable after December 31, 2017 (but in any event by March 15, 2018), deliver a report to Purchaser setting forth its determination of the Seller Retained Volume (the “Seller Retained Volume Report”). If Purchaser has any objections to such report, it shall notify Seller in writing of its objections within 30 days of its receipt of such report, in which case the provisions of Section 1.6(e) shall apply mutatis mutandi to the resolution of any such dispute. The payments required to be made by Purchaser under this subsection (e) shall be made no later than 10 Business Days following the later of (i) Purchaser’s receipt of the Seller Retained Volume Report (if Purchaser has not objected thereto) or (ii) the final determination of the amount of Seller Retained Volume. (g) If, with respect to any volume of Units, Purchaser is required to make payments to Seller under both Section 1.15(e) and Section 1.15(f), or Seller is required to make payments to Purchaser under both Section 1.15(d) and Section 1.15(f), Purchaser or Seller, as applicable, shall first satisfy its obligations under Section 1.15(d) or Section 1.15(e), as applicable, before making any payment under Section 1.15(f); provided that in no event shall Purchaser or Seller be required to make payments under both Section 1.15(e) and Section 1.15(f) or Section 1.15(d) and Section 1.15(f), as applicable, with respect to the same volume of Units. (h) Notwithstanding anything to the contrary in this Agreement, Purchaser shall not, and shall cause its Affiliates not to, effect or permit any of the following, and Purchaser’s right to receive any potential payment from Seller under Section 1.15(d) shall irrevocably terminate if Purchaser or its applicable Affiliate (x) takes any action with the primary intent of artificially preventing or decreasing the amount of any payments potentially due to Seller under Section 1.15(e) (or increasing the payments potentially due to Purchaser under Section 1.15(d)) (including any action to delay sales of Units until after the end of the 2017 calendar year), (y) acts in bad faith with respect to attaining any volume of cans or ends for the purpose of reducing the payments potentially due to Seller (or increasing the payments potentially due to Purchaser) under Section 1.15(e) or Section 1.15(d), or (z) fails to conduct the Business in a manner generally consistent with the efforts and resources that Purchaser and its Affiliates would devote to its other operations and businesses similarly situated to the Business absent Section 1.15(d) and Section 1.15(e). (i) The payments to be made by Purchaser or Seller pursuant to this Section 1.15 shall be treated in all respects as adjustments to the Purchase Price, and shall be made by wire transfer of immediately available funds to an account or accounts designated in writing by Seller or Purchaser to the other no fewer than three Business Days prior to the scheduled date of such payment. (j) Purchaser and Seller agree that to the extent any of the information to be exchanged between them pursuant to this Section 1.15 for purposes of determining any payments due to each other hereunder is competitively sensitive, such information will be disclosed only to specifically identified employees of Seller or Purchaser who do not have day-to-day pricing or strategic responsibilities, as applicable, or third party Representatives of either of them. Seller and Purchaser will cooperate to identify any such competitively sensitive information and to ensure that such information is reviewed only by such specifically identified employees who do not have day-to-day pricing or strategic responsibilities or third party Representatives.

Additional Purchase Price Adjustment. (a) Seller acknowledges that the fundamental economic benefits that Purchaser expects to receive from the Transaction are predicated on the Business having a sales perimeter of at least the 2017 Volume Threshold Amount in the 2017 calendar year, and that the covenants and agreements set forth in this Section 1.15 are essential to allow Purchaser to achieve these fundamental economic benefits. (b) Set forth on Schedule 1.15(b) is a list of the identified volume of cans and ends (“Units”) expected to be sold by the Business in the 2017 calendar year, including (except for the volume specified under “Other Volumes”) the customers to which such Units will be sold, the Facility in which such Units are manufactured and from which they will be shipped to such customers. (c) As promptly as practicable after December 31, 2017 (but in any event by March 15, 2018), Purchaser shall deliver to Ernst & Young LLP, Seller’s designated third-party representative (the “Seller Representative”), a report (the “2017 Actual Volume Report”) setting forth the aggregate number of Units actually sold, brokered, assigned to, or contract manufactured by Purchaser or its Affiliates (including the Purchased Entities) from the Facilities during the 2017 calendar year (the “2017 Actual Volume”). If Each of the Seller Representative (and, if applicable, the Arbiter) shall be permitted to share with Seller only aggregated volume information relating to any difference between the 2017 Volume Threshold Amount and the 2017 Actual Volume across all the Facilities (and without any customer-level specific data) in connection with its evaluation hereunder. The Seller Representative (and, if applicable, the Arbiter) may request additional information from Purchaser to verify the information in the 2017 Actual Volume Report, and Purchaser shall cooperate with the Seller Representative (and, if applicable, the Arbiter) in connection with their review of the 2017 Actual Volume Report, including providing the Seller Representative (and, if applicable, the Arbiter) with reasonable access to its books, records and management for purposes of such review. If, after consultation with the Seller Representative, Seller has any objections to the amounts reflected in the 2017 Actual Volume Report, it shall notify Purchaser in writing of its objections within 30 thirty (30) days of its receipt of such report, in which case, the provisions of Section 1.6(e) shall apply mutatis mutandi to the resolution of any such disputedispute (except that the Seller Representative shall represent Seller therein). If Seller has not objected to such report within such 30 thirty (30) day period, the 2017 Actual Volume shall be deemed to be as reflected in such report delivered by Purchaser. (d) If the 2017 Actual Volume is deemed or determined to be less than the 2017 Volume Threshold Amount, then no later than 10 ten (10) Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of the 2017 Actual Volume in accordance with Section 1.15(c), Seller shall pay to Purchaser an amount equal to the 2017 Volume Shortfall Amount; provided that in no event shall the payment to be made by Seller to Purchaser under this subsection (d) exceed $75 million. (e) If the 2017 Actual Volume is deemed or determined to be greater than the 2017 Volume Threshold Amount then, subject to Section 1.15(f), no later than 10 Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of the 2017 Actual Volume in accordance with Section 1.15(c), Purchaser shall pay to Seller an amount equal to the 2017 Volume Surplus Amount; provided that in no event shall the payment to be made by Purchaser to Seller under this subsection (e) exceed $75 million. (f) If Purchaser determines, and so notifies the Seller Representative in writingwriting as promptly as practicable after December 31, 2017 (but in any event by March 15, 2018), that the 2017 Actual Volume has been reduced as a direct result of the sale by Seller or any of its Affiliates of Units to any of the customers at the customer locations listed on Schedule 1.15(b) with respect to such customers or of Units included in “Other Volumes” on Schedule 1.15(b) (as reflected in the 2017 Actual Volume Report and subject to the dispute resolution provisions described in Section 1.15(c)), then, subject to Section 1.15(d) (but without duplication of any volumes attributable to payments made thereunder)the “Section 1.15 Report”) then, no later than 10 ten (10) Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of the number of Units so sold by Seller or any of its Affiliates in accordance with Section 1.15(c), Seller shall pay to Purchaser (x) the Seller Volume Payment Amount; provided that . The Seller Representative may request additional information from Purchaser (and, if applicable, the amount Arbiter may request additional information from each of Purchaser and Seller) to verify the information in the Section 1.15 Report, and Purchaser shall cooperate in connection with the Seller Representative’s review of the Section 1.15 Report (and, if anyapplicable, each of Seller and Purchaser shall cooperate with the Arbiter in connection with its review of the Section 1.15 Report), including providing the Seller Representative (or the Arbiter, if applicable) payable by with reasonable access to its books, records and management for purposes of such review. Each of the Seller to Purchaser under Section 1.15(d) and this Section 1.15(fRepresentative (and, if applicable, the Arbiter) shall be reduced by, or permitted to share with Seller only aggregated volume information relating to the extent there is no amount payable customers to which Purchaser reports that volume has been sold by Seller to Purchaser under Section 1.15(dand its Affiliates across all of the Facilities (and without any customer-level specific data) or this Section 1.15(f) (after taking into account in connection with its evaluation hereunder, and the reduction Arbiter (if anyapplicable) will be permitted to any amount payable by Seller to share with Purchaser as a result of the application of this proviso), Purchaser shall pay to Seller (solely only aggregated volume information relating to the extent a reduction (if any) for such amount payable has not already been made hereunder), the Purchaser Volume Payment Amount with respect to any volume of Units sold by Purchaser or Seller and its Affiliates (including the Purchased Entities) in the 2017 calendar year from volume expected that would give rise to be retained any payments by Seller or its Affiliates in 2017 after giving effect to the Transaction (the “Seller Retained Volume”). If Seller determines, and so notifies Purchaser in writing, that Purchaser is required to make a payment to Seller under this Section 1.15(f1.15(e) across the facilities of Seller and its Affiliates (and without any customer-level specific data). If, it shall, as promptly as practicable after December 31, 2017 (but in any event by March 15, 2018), deliver a report to Purchaser setting forth its determination of consultation with the Seller Retained Volume (the “Representative, Seller Retained Volume Report”). If Purchaser has any objections to such reportthe amounts reflected in the Section 1.15 Report, it shall notify Seller in writing Purchaser of its objections within 30 thirty (30) days of its receipt of such report, in which case case, the provisions of Section 1.6(e) shall apply mutatis mutandi to the resolution of any such dispute. The payments required to be made by Purchaser under this subsection dispute (e) shall be made no later than 10 Business Days following the later of (i) Purchaser’s receipt of except that the Seller Retained Volume Report (if Purchaser Representative shall represent Seller therein). If Seller has not objected theretoto such report within such thirty (30) or (ii) day period, the final determination of the amount of Seller Retained VolumeSection 1.15 Report shall be deemed to be as reflected in such report delivered by Purchaser. (gf) If, with respect to any volume of Units, Purchaser is required to make payments to Seller under both Section 1.15(e) and Section 1.15(f), or Seller is required to make payments to Purchaser under both Section 1.15(d) and Section 1.15(f1.15(e), Purchaser or Seller, as applicable, Seller shall first satisfy its obligations under Section 1.15(d) or Section 1.15(e), as applicable, before making any payment under Section 1.15(f1.15(e); provided that in no event shall Purchaser or Seller be required to make payments under both Section 1.15(e) and Section 1.15(f) or Section 1.15(d) and Section 1.15(f), as applicable, 1.15(e) with respect to the same volume of Units. (hg) Notwithstanding anything to the contrary in this Agreement, Purchaser shall not, and shall cause its Affiliates not to, effect or permit any of the following, and Purchaser’s right to receive any potential payment from Seller under Section 1.15(d) shall irrevocably terminate if Purchaser or its applicable Affiliate (x) takes any action with the primary intent of artificially preventing or decreasing the amount of any payments potentially due to Seller under Section 1.15(e) (or increasing the payments potentially due to Purchaser under Section 1.15(d)) (including any action to delay sales of Units until after the end of the 2017 calendar year), (y) acts in bad faith with respect to attaining any volume of cans or ends for the purpose of reducing the payments potentially due to Seller (or increasing the payments potentially due to Purchaser) Purchaser under Section 1.15(e) or Section 1.15(d), or (z) fails to conduct the Business in a manner generally consistent with the efforts and resources that Purchaser and its Affiliates would devote to its other operations and businesses similarly situated to the Business absent Section 1.15(d) and Section 1.15(e). (i) . The payments to be made by Purchaser or Seller pursuant to this Section 1.15 shall be treated in all respects as adjustments to the Purchase Price, and shall be made by wire transfer of immediately available funds to an account or accounts designated in writing by Seller or Purchaser to the other Seller no fewer than three (3) Business Days prior to the scheduled date of such payment.” (j3. Schedule 10.1(r). The Agreement is hereby further amended by deleting in its entirety Schedule 10.1(r) Purchaser and Seller agree that to the extent any of Agreement and replacing it with the information to be exchanged between them pursuant to this amended Schedule 10.1(r) attached hereto. 4. Section 1.15 for purposes of determining any payments due to each other hereunder 11.20. This Agreement is competitively sensitive, such information will be disclosed only to specifically identified employees of Seller or Purchaser who do not have day-to-day pricing or strategic responsibilities, further amended by adding a new Section 11.20 as applicable, or third party Representatives of either of them. Seller and Purchaser will cooperate to identify any such competitively sensitive information and to ensure that such information is reviewed only by such specifically identified employees who do not have day-to-day pricing or strategic responsibilities or third party Representatives.follows:

Additional Purchase Price Adjustment. (a) Seller acknowledges that the fundamental economic benefits that Purchaser expects to receive from the Transaction are predicated on the Business having a sales perimeter of at least the 2017 Volume Threshold Amount in the 2017 calendar year, and that the covenants and agreements set forth in this Section 1.15 are essential to allow Purchaser to achieve these fundamental economic benefits. (b) Set forth on Schedule 1.15(b) is a list of the identified volume of cans and ends (“Units”) expected to be sold by the Business in the 2017 calendar year, including the customers to which such Units will be sold, the Facility in which such Units are manufactured and from which they will be shipped to such customers. (c) As promptly as practicable after December 31, 2017 (but in any event by March 15, 2018), Purchaser shall deliver to Seller a report (the “2017 Actual Volume Report”) setting forth the aggregate number of Units actually sold, brokered, assigned to, or contract manufactured by Purchaser or its Affiliates (including the Purchased Entities) from the Facilities during the 2017 calendar year (the “2017 Actual Volume”). If Seller has any objections to the amounts reflected in the 2017 Actual Volume Report, it shall notify Purchaser in writing of its objections within 30 days of its receipt of such report, in which case, the provisions of Section 1.6(e) shall apply mutatis mutandi to the resolution of any such dispute. If Seller has not objected to such report within such 30 day period, the 2017 Actual Volume shall be deemed to be as reflected in such report delivered by Purchaser. (d) If the 2017 Actual Volume is deemed or determined to be less than the 2017 Volume Threshold Amount, then no later than 10 Business Days following the later of (i) Seller’s receipt If (i) based on the financial statements of such report (if Seller has not objected thereto) or the ULHL Subsidiaries available as at the Closing Date, the Adjusted Net Asset Amount as at the Adjustment Time and/or (ii) the final determination result of the 2017 Actual Volume calculation set forth in the Closing Adjusted Net Asset Statement is equal to or greater than five percent (5%) higher than the Adjusted Net Asset Amount calculated in accordance with Section 1.15(c), Seller shall pay to Purchaser an amount equal to 3.02(a)(i) and/or the 2017 Volume Shortfall Amount; provided that in no event shall the payment to be made by Seller to Purchaser under this subsection (d) exceed $75 million. (e) If the 2017 Actual Volume is deemed or determined to be greater than the 2017 Volume Threshold Amount then, subject to Section 1.15(f), no later than 10 Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of the 2017 Actual Volume in accordance with Section 1.15(c), Purchaser shall pay to Seller an amount equal to the 2017 Volume Surplus Amount; provided that in no event shall the payment to be made by Purchaser to Seller under this subsection (e) exceed $75 million. (f) If Purchaser determines, and so notifies Seller in writing, that the 2017 Actual Volume has been reduced as a direct result of the sale by Seller or any of its Affiliates of Units to any of the customers at the customer locations listed on Schedule 1.15(b) with respect to such customers (as reflected calculation set forth in the 2017 Actual Volume Report and subject to the dispute resolution provisions described in Section 1.15(c)), then, subject to Section 1.15(d) (but without duplication of any volumes attributable to payments made thereunder), no later than 10 Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of the number of Units so sold by Seller or any of its Affiliates in accordance with Section 1.15(c), Seller shall pay to Purchaser (x) the Seller Volume Payment Amount; provided that the amount (if any) payable by Seller to Purchaser under Section 1.15(d) and this Section 1.15(f) shall be reduced by, or to the extent there is no amount payable by Seller to Purchaser under Section 1.15(d) or this Section 1.15(f) (after taking into account the reduction (if any) to any amount payable by Seller to Purchaser as a result of the application of this proviso), Purchaser shall pay to Seller (solely to the extent a reduction (if any) for such amount payable has not already been made hereunder), the Purchaser Volume Payment Amount with respect to any Units sold by Purchaser or its Affiliates (including the Purchased Entities) in the 2017 calendar year from volume expected to be retained by Seller or its Affiliates in 2017 after giving effect to the Transaction (the “Seller Retained Volume”). If Seller determines, and so notifies Purchaser in writing, that Purchaser is required to make a payment to Seller under this Section 1.15(f), it shall, as promptly as practicable after December 31, 2017 (but in any event by March 15, 2018), deliver a report to Purchaser setting forth its determination of the Seller Retained Volume (the “Seller Retained Volume Report”). If Purchaser has any objections to such report, it shall notify Seller in writing of its objections within 30 days of its receipt of such report, in which case the provisions of Section 1.6(e) shall apply mutatis mutandi to the resolution of any such dispute. The payments required to be made by Purchaser under this subsection (e) shall be made no later than 10 Business Days following the later of (i) Purchaser’s receipt of the Seller Retained Volume Report (if Purchaser has not objected thereto) or (ii) the final determination of the amount of Seller Retained Volume. (g) If, with respect to any volume of Units, Purchaser is required to make payments to Seller under both Section 1.15(e) and Section 1.15(f), or Seller is required to make payments to Purchaser under both Section 1.15(d) and Section 1.15(f), Purchaser or SellerULHL Adjusted Net Asset Statement, as applicable, (any such difference shall first satisfy its obligations under Section 1.15(d) or Section 1.15(ebe referred to as the “Audited Excess Amount”), as applicablethen ULHL may, before making any payment under Section 1.15(f); provided that in no event shall Purchaser or Seller be required within six (6) months of the Closing Date, request the Buyer to make payments under both Section 1.15(e) and Section 1.15(f) or Section 1.15(d) and Section 1.15(f), as applicable, with respect pay to ULHL an additional sum equivalent to the same volume of Units. (h) Notwithstanding anything to the contrary in this Agreement, Purchaser shall not, and shall cause its Affiliates not to, effect or permit any of the following, and Purchaser’s right to receive any potential payment from Seller under Section 1.15(d) shall irrevocably terminate if Purchaser or its applicable Affiliate (x) takes any action with the primary intent of artificially preventing or decreasing the amount of any payments potentially due to Seller under Section 1.15(e) (or increasing the payments potentially due to Purchaser under Section 1.15(d)) (including any action to delay sales of Units until after the end of the 2017 calendar year), (y) acts in bad faith with respect to attaining any volume of cans or ends for the purpose of reducing the payments potentially due to Seller (or increasing the payments potentially due to Purchaser) under Section 1.15(e) or Section 1.15(d), or (z) fails to conduct the Business in a manner generally consistent with the efforts and resources that Purchaser and its Affiliates would devote to its other operations and businesses similarly situated to the Business absent Section 1.15(d) and Section 1.15(e). (i) The payments to be made by Purchaser or Seller pursuant to this Section 1.15 shall be treated in all respects as adjustments to the Purchase Price, and shall be made Audited Excess Amount by wire transfer of immediately available funds to an account one or more accounts designated by ULHL, and the Buyer shall make the payment in writing by Seller or Purchaser the amount of the Audited Excess Amount to ULHL within 1 month of the other no fewer than three Business Days prior to said request (the scheduled date of such payment.“Additional Excess Adjustment”); and (jii) Purchaser and Seller agree that to If, (i) based on the extent any financial statements of the information ULHL Subsidiaries available as at the Closing Date, the Adjusted Net Asset Amount as at the Adjustment Time and/or (ii) the result of the calculation set forth in the Closing Adjusted Net Asset Statement is equal to be exchanged between them pursuant to this or greater than five percent (5%) less than the Adjusted Net Asset Amount calculated in accordance with Section 1.15 for purposes 3.02(a)(i) and/or the result of determining any payments due to each other hereunder is competitively sensitive, such information will be disclosed only to specifically identified employees of Seller or Purchaser who do not have day-to-day pricing or strategic responsibilitiesthe calculation set forth in the ULHL Adjusted Net Asset Statement, as applicable, (such difference shall be referred to as the “Audited Deficit Amount”), then the Buyer may, within six (6) months of the Closing Date, request the ULHL to pay to the Buyer a sum equivalent to the Audited Deficit Amount by wire transfer of immediately available funds to one or third party Representatives more accounts designated by the Buyer, and ULHL shall make the payment in the amount of either the Audited Deficit Amount to the Buyer within 1 month of themthe said request (such adjustment, together with the Additional Excess Adjustment shall collectively be referred to as the “Additional Purchase Price Adjustment”); For the purposes of Sections 3.02(e)(i) and (ii), “financial statements of the ULHL Subsidiaries available as at the Closing Date” shall mean the audited financial statements of the applicable ULHL Subsidiaries, provided, however, where the audited financial statements are not available because the Adjustment Time does not fall on the financial year end of the relevant ULHL Subsidiary, it shall mean the management accounts of the relevant ULHL Subsidiary as at the Adjustment Time certified by Mx. Seller Xxxxxxx Xxx or another director designated by ULHL to be true, prepared in good faith based on the available audited financials, books and Purchaser will cooperate to identify any such competitively sensitive information records and to ensure that such information is reviewed only by such specifically identified employees who do not have day-to-day pricing or strategic responsibilities or third party Representativesother available information.

Additional Purchase Price Adjustment. (a) Seller acknowledges that the fundamental economic benefits that Purchaser expects to receive from the Transaction are predicated on the Business having a sales perimeter of at least the 2017 Volume Threshold Amount in the 2017 calendar year, and that the covenants and agreements set forth in this Section 1.15 are essential to allow Purchaser to achieve these fundamental economic benefits. (b) Set forth on Schedule 1.15(b) is a list of the identified volume of cans and ends (“Units”) expected to be sold by the Business in the 2017 calendar year, including the customers to which such Units will be sold, the Facility in which such Units are manufactured and from which they will be shipped to such customers. (c) As promptly as practicable after December 31, 2017 (but in any event by March 15, 2018), Purchaser shall deliver to Seller a report (the “2017 Actual Volume Report”) setting forth the aggregate number of Units actually sold, brokered, assigned to, or contract manufactured by Purchaser or its Affiliates (including the Purchased Entities) from the Facilities during the 2017 calendar year (the “2017 Actual Volume”). If Seller has any objections to the amounts reflected in the 2017 Actual Volume Report, it shall notify Purchaser in writing of its objections within 30 days of its receipt of such report, in which case, the provisions of Section 1.6(e) shall apply mutatis mutandi to the resolution of any such dispute. If Seller has not objected to such report within such 30 day period, the 2017 Actual Volume shall be deemed to be as reflected in such report delivered by Purchaser. (d) If the 2017 Actual Volume is deemed or determined to Redemption Share Value shall be less than the 2017 Volume Threshold AmountRedemption Target upon the repurchase of the then outstanding shares of Series B Convertible Preferred Stock pursuant to Section 4.10 of this Agreement, then no later than 10 then, within ten (10) Business Days following the later date of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination repurchase of the 2017 Actual Volume in accordance with Section 1.15(c), Seller shall pay to Purchaser an amount equal to the 2017 Volume Shortfall Amount; provided that in no event shall the payment to be made by Seller to Purchaser under this subsection (d) exceed $75 million. (e) If the 2017 Actual Volume is deemed or determined to be greater than the 2017 Volume Threshold Amount then, subject then outstanding shares of Series B Convertible Preferred Stock pursuant to Section 1.15(f)4.10 of this Agreement, no later than 10 Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of the 2017 Actual Volume in accordance with Section 1.15(c), Purchaser shall pay to the Seller an amount equal to the 2017 Volume Surplus Amount; provided that in no event shall the payment to be made by Purchaser to Seller under this subsection (e) exceed $75 million. (f) If Purchaser determines, and so notifies Seller in writing, that the 2017 Actual Volume has been reduced as a direct result of the sale by Seller or any of and/or its Affiliates of Units to any of the customers at the customer locations listed on Schedule 1.15(b) with respect to such customers (as reflected in the 2017 Actual Volume Report and subject to the dispute resolution provisions described in Section 1.15(c)), then, subject permitted assigns pursuant to Section 1.15(d11.2(d) (but without duplication of any volumes attributable to payments made thereunder)this Agreement, no later than 10 Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of pro rata based on the number of Units so sold shares of Series B Convertible Preferred Stock held by Seller or any such Person(s) immediately prior to the repurchase pursuant to Section 4.10 of its Affiliates this Agreement, an aggregate amount in accordance with Section 1.15(c), Seller shall pay cash equal to Purchaser (x) the Seller Volume Payment Amount; provided that the amount (if any) payable by Seller to Purchaser under Section 1.15(d) and this Section 1.15(f) shall be reduced by, or to which the extent there is no amount payable by Seller to Purchaser under Section 1.15(d) or this Section 1.15(f) (after taking into account Redemption Target exceeds the reduction (if any) to any amount payable by Seller to Purchaser as a result of the application of this proviso), Purchaser shall pay to Seller (solely to the extent a reduction (if any) for such amount payable has not already been made hereunder), the Purchaser Volume Payment Amount with respect to any Units sold by Purchaser or its Affiliates (including the Purchased Entities) in the 2017 calendar year from volume expected to be retained by Seller or its Affiliates in 2017 after giving effect to the Transaction Redemption Share Value (the “Seller Retained VolumeMake Whole Payment”). If Seller determines, and so notifies Purchaser in writing, that Purchaser is required to make a payment to Seller under this Section 1.15(f), it shall, as promptly as practicable after December 31, 2017 Within ten (but in any event by March 15, 2018), deliver a report to Purchaser setting forth its determination of the Seller Retained Volume (the “Seller Retained Volume Report”). If Purchaser has any objections to such report, it shall notify Seller in writing of its objections within 30 days of its receipt of such report, in which case the provisions of Section 1.6(e10) shall apply mutatis mutandi to the resolution of any such dispute. The payments required to be made by Purchaser under this subsection (e) shall be made no later than 10 Business Days following the later earlier of (i) Purchaser’s receipt the date of redemption of the Seller Retained Volume Report (if Purchaser has not objected thereto) or Series B Convertible Preferred Stock pursuant to Section 7 of the Certificate of Designation, (ii) the final determination date the Series B Convertible Preferred Stock would have been redeemed pursuant to Section 7 of the amount Certificate of Seller Retained Volume. Designation or repurchased pursuant to Section 4.10 of this Agreement in the case of the conversion of all of the shares of Series B Convertible Preferred Stock pursuant to Section 6 of the Certificate of Designation and (giii) If, with respect the date of repurchase of the Series B Convertible Stock pursuant to any volume Section 4.10 of Units, Purchaser is required to make payments to Seller under both Section 1.15(e) and Section 1.15(f), or Seller is required to make payments to Purchaser under both Section 1.15(d) and Section 1.15(f), Purchaser or Sellerthis Agreement, as applicable, the Seller shall first satisfy its obligations under Section 1.15(d) or Section 1.15(e), as applicable, before making any payment under Section 1.15(f); provided that in no event shall Purchaser or Seller be required to make payments under both Section 1.15(e) and Section 1.15(f) or Section 1.15(d) and Section 1.15(f), as applicable, with respect pay to the same volume of Units. (h) Notwithstanding anything to the contrary Purchaser an amount in this Agreementcash, Purchaser shall not, and shall cause its Affiliates not to, effect or permit any of the following, and Purchaser’s right to receive any potential payment from Seller under Section 1.15(d) shall irrevocably terminate if Purchaser or its applicable Affiliate (x) takes any action with the primary intent of artificially preventing or decreasing the amount of any payments potentially due to Seller under Section 1.15(e) (or increasing the payments potentially due to Purchaser under Section 1.15(d)) (including any action to delay sales of Units until after the end of the 2017 calendar year), (y) acts in bad faith with respect to attaining any volume of cans or ends for the purpose of reducing the payments potentially due to Seller (or increasing the payments potentially due to Purchaser) under Section 1.15(e) or Section 1.15(d), or (z) fails to conduct the Business in a manner generally consistent with the efforts and resources that Purchaser and its Affiliates would devote to its other operations and businesses similarly situated to the Business absent Section 1.15(d) and Section 1.15(e). (i) The payments to be made by Purchaser or Seller pursuant to this Section 1.15 shall be treated in all respects as adjustments to the Purchase Price, and shall be made by wire transfer of immediately available funds to an account or accounts designated in writing by Seller or Purchaser the Purchaser, equal to the other no fewer than three Business Days prior to Resolution Payment Amount; provided, that the scheduled date Resolution Payment Amount shall be payable only once.” Section 5. Addition of such payment. (j) Purchaser and Seller agree that to the extent any New Section 4.9. Article IV of the information to be exchanged between them pursuant to this Agreement is hereby amended by inserting the following new Section 1.15 for purposes of determining any payments due to each other hereunder is competitively sensitive, such information will be disclosed only to specifically identified employees of Seller or Purchaser who do not have day-to-day pricing or strategic responsibilities, as applicable, or third party Representatives of either of them. Seller and Purchaser will cooperate to identify any such competitively sensitive information and to ensure that such information is reviewed only by such specifically identified employees who do not have day-to-day pricing or strategic responsibilities or third party Representatives.4.9 immediately following current Section 4.8: “

Additional Purchase Price Adjustment. (a) Seller acknowledges that the fundamental economic benefits that Purchaser expects to receive from the Transaction are predicated on the Business having a sales perimeter of at least the 2017 Volume Threshold Amount in the 2017 calendar year, and that the covenants and agreements set forth in this Section 1.15 are essential to allow Purchaser to achieve these fundamental economic benefits. (b) Set forth on Schedule 1.15(b) is a list of the identified volume of cans and ends (“Units”) expected to be sold by the Business in the 2017 calendar year, including the customers to which such Units will be sold, the Facility in which such Units are manufactured and from which they will be shipped to such customers. (c) As promptly as practicable after December 31, 2017 (but in any event by March 15, 2018), Purchaser shall deliver to Seller a report (the “2017 Actual Volume Report”) setting forth the aggregate number of Units actually sold, brokered, assigned to, or contract manufactured by Purchaser or its Affiliates (including the Purchased Entities) from the Facilities during the 2017 calendar year (the “2017 Actual Volume”). If Seller has any objections to the amounts reflected in the 2017 Actual Volume Report, it shall notify Purchaser in writing of its objections within 30 days of its receipt of such report, in which case, the provisions of Section 1.6(e) shall apply mutatis mutandi to the resolution of any such dispute. If Seller has not objected to such report within such 30 day period, the 2017 Actual Volume shall be deemed to be as reflected in such report delivered by Purchaser. (d) If the 2017 Actual Volume is deemed or determined to Redemption Share Value shall be less than the 2017 Volume Threshold AmountRedemption Target upon the repurchase of the then outstanding shares of Series B Convertible Preferred Stock pursuant to Section 4.10 of this Agreement, then no later than 10 then, within ten (10) Business Days following the later date of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination repurchase of the 2017 Actual Volume in accordance with Section 1.15(c), Seller shall pay to Purchaser an amount equal to the 2017 Volume Shortfall Amount; provided that in no event shall the payment to be made by Seller to Purchaser under this subsection (d) exceed $75 million. (e) If the 2017 Actual Volume is deemed or determined to be greater than the 2017 Volume Threshold Amount then, subject then outstanding shares of Series B Convertible Preferred Stock pursuant to Section 1.15(f)4.10 of this Agreement, no later than 10 Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of the 2017 Actual Volume in accordance with Section 1.15(c), Purchaser shall pay to the Seller an amount equal to the 2017 Volume Surplus Amount; provided that in no event shall the payment to be made by Purchaser to Seller under this subsection (e) exceed $75 million. (f) If Purchaser determines, and so notifies Seller in writing, that the 2017 Actual Volume has been reduced as a direct result of the sale by Seller or any of and/or its Affiliates of Units to any of the customers at the customer locations listed on Schedule 1.15(b) with respect to such customers (as reflected in the 2017 Actual Volume Report and subject to the dispute resolution provisions described in Section 1.15(c)), then, subject permitted assigns pursuant to Section 1.15(d11.2(d) (but without duplication of any volumes attributable to payments made thereunder)this Agreement, no later than 10 Business Days following the later of (i) Seller’s receipt of such report (if Seller has not objected thereto) or (ii) the final determination of pro rata based on the number of Units so sold shares of Series B Convertible Preferred Stock held by Seller or any such Person(s) immediately prior to the repurchase pursuant to Section 4.10 of its Affiliates this Agreement, an aggregate amount in accordance with Section 1.15(c), Seller shall pay cash equal to Purchaser (x) the Seller Volume Payment Amount; provided that the amount (if any) payable by Seller to Purchaser under Section 1.15(d) and this Section 1.15(f) shall be reduced by, or to which the extent there is no amount payable by Seller to Purchaser under Section 1.15(d) or this Section 1.15(f) (after taking into account Redemption Target exceeds the reduction (if any) to any amount payable by Seller to Purchaser as a result of the application of this proviso), Purchaser shall pay to Seller (solely to the extent a reduction (if any) for such amount payable has not already been made hereunder), the Purchaser Volume Payment Amount with respect to any Units sold by Purchaser or its Affiliates (including the Purchased Entities) in the 2017 calendar year from volume expected to be retained by Seller or its Affiliates in 2017 after giving effect to the Transaction Redemption Share Value (the “Seller Retained VolumeMake Whole Payment”). If Seller determines, and so notifies Purchaser in writing, that Purchaser is required to make a payment to Seller under this Section 1.15(f), it shall, as promptly as practicable after December 31, 2017 Within ten (but in any event by March 15, 2018), deliver a report to Purchaser setting forth its determination of the Seller Retained Volume (the “Seller Retained Volume Report”). If Purchaser has any objections to such report, it shall notify Seller in writing of its objections within 30 days of its receipt of such report, in which case the provisions of Section 1.6(e10) shall apply mutatis mutandi to the resolution of any such dispute. The payments required to be made by Purchaser under this subsection (e) shall be made no later than 10 Business Days following the later earlier of (i) Purchaser’s receipt the date of redemption of the Seller Retained Volume Report (if Purchaser has not objected thereto) or Series B Convertible Preferred Stock pursuant to Section 7 of the Certificate of Designation, (ii) the final determination date the Series B Convertible Preferred Stock would have been redeemed pursuant to Section 7 of the amount Certificate of Seller Retained Volume. Designation or repurchased pursuant to Section 4.10 of this Agreement in the case of the conversion of all of the shares of Series B Convertible Preferred Stock pursuant to Section 6 of the Certificate of Designation and (giii) If, with respect the date of repurchase of the Series B Convertible Stock pursuant to any volume Section 4.10 of Units, Purchaser is required to make payments to Seller under both Section 1.15(e) and Section 1.15(f), or Seller is required to make payments to Purchaser under both Section 1.15(d) and Section 1.15(f), Purchaser or Sellerthis Agreement, as applicable, the Seller shall first satisfy its obligations under Section 1.15(d) or Section 1.15(e), as applicable, before making any payment under Section 1.15(f); provided that in no event shall Purchaser or Seller be required to make payments under both Section 1.15(e) and Section 1.15(f) or Section 1.15(d) and Section 1.15(f), as applicable, with respect pay to the same volume of Units. (h) Notwithstanding anything to the contrary Purchaser an amount in this Agreementcash, Purchaser shall not, and shall cause its Affiliates not to, effect or permit any of the following, and Purchaser’s right to receive any potential payment from Seller under Section 1.15(d) shall irrevocably terminate if Purchaser or its applicable Affiliate (x) takes any action with the primary intent of artificially preventing or decreasing the amount of any payments potentially due to Seller under Section 1.15(e) (or increasing the payments potentially due to Purchaser under Section 1.15(d)) (including any action to delay sales of Units until after the end of the 2017 calendar year), (y) acts in bad faith with respect to attaining any volume of cans or ends for the purpose of reducing the payments potentially due to Seller (or increasing the payments potentially due to Purchaser) under Section 1.15(e) or Section 1.15(d), or (z) fails to conduct the Business in a manner generally consistent with the efforts and resources that Purchaser and its Affiliates would devote to its other operations and businesses similarly situated to the Business absent Section 1.15(d) and Section 1.15(e). (i) The payments to be made by Purchaser or Seller pursuant to this Section 1.15 shall be treated in all respects as adjustments to the Purchase Price, and shall be made by wire transfer of immediately available funds to an account or accounts designated in writing by Seller or Purchaser the Purchaser, equal to the other no fewer than three Business Days prior to Resolution Payment Amount; provided, that the scheduled date Resolution Payment Amount shall be payable only once.” Section 5. Addition of such payment. (j) Purchaser and Seller agree that to the extent any New Section 4.9. Article IV of the information to be exchanged between them pursuant to this Agreement is hereby amended by inserting the following new Section 1.15 for purposes of determining any payments due to each other hereunder is competitively sensitive, such information will be disclosed only to specifically identified employees of Seller or Purchaser who do not have day-to-day pricing or strategic responsibilities, as applicable, or third party Representatives of either of them. Seller and Purchaser will cooperate to identify any such competitively sensitive information and to ensure that such information is reviewed only by such specifically identified employees who do not have day-to-day pricing or strategic responsibilities or third party Representatives.4.9 immediately following current Section 4.8: