Common use of Adjustment of Merger Consideration Clause in Contracts

Adjustment of Merger Consideration. (a) Subject to Sections 4(b) to 4(i) (inclusive) and Section 5, from time to time following the Effective Time, US Holdco may withdraw from the Account, amounts equal to 60% of the first $300,000,000 of Losses incurred after the time that Losses and Ancillary Expenses exceed $700,000,000 (calculated on a pre-tax basis), but in no event more than $180,000,000 (the "Total Amount"). (b) The Principal Stockholder will not have any liability with respect to the Princeton Note Matter under this Agreement or otherwise in excess of the Total Amount and any obligation of the Principal Stockholder under this Agreement shall be satisfied solely out of the Account. (c) Except as otherwise specifically provided in this Agreement and Section 15 of the Stockholders Agreement, HSBC and US Holdco each acknowledges that it and its Subsidiaries, and to the full extent that HSBC or US Holdco has the legal authority to do so, their respective officers, directors, employees, stockholders (in their capacity as such) and representatives will have no remedy against any Principal Stockholder Entity with respect to any and all Losses arising directly or indirectly out of or relating to the Princeton Note Matter. In furtherance of the foregoing, HSBC and US Holdco each agrees, on behalf of itself and its Subsidiaries, and to the full extent that either has the legal authority to do so, their respective officers, directors, employees, stockholders (in their capacity as such) and representatives, to waive any and all rights, claims and causes of action they may have against any Principal Stockholder Entity, arising out of or relating directly or indirectly to the Princeton Note Matter. Except in the case of any Principal Stockholder Entity nothing herein is intended to waive any rights the Company, US Holdco or HSBC (or any of their respective Subsidiaries) may have against any other Person or any such Person in any other capacity. (d) The final amount of the adjustment to the Merger Consideration resulting from any Loss and US Holdco's right to withdraw from the Principal Stockholder's Account provided under this Section 4 shall be (i) increased to take account of any net tax cost incurred by the Taxpayer arising from the receipt of payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net tax benefit actually realized by the Taxpayer arising from the incurrence or payment of any such Loss. In computing the amount of any such tax cost or tax benefit, the Relevant Parties shall be deemed to recognize all other items of income, gain, loss deduction or credit before recognizing any item arising from the receipt of any payment hereunder or the incurrence or payment of any Loss; provided, however, that in calculating the tax benefit in respect of any Loss, the deductibility or other tax effect of all Losses in the aggregate will be allocated among such Losses on a pro-rata basis. The amount of a tax benefit shall be determined on the date that the Taxpayer receives an actual reduction in its tax liability (including a reduction in estimated tax payments) and shall be subject to adjustment pursuant to the remainder of this Section 4 if such tax benefit subsequently increases or decreases. (e) The Taxpayer shall claim a tax deduction (or, without limitation, any other available tax benefits) for any Losses, without regard to the adjustment to Merger Consideration made pursuant to this Agreement, except to the extent that the Taxpayer has received an opinion of its independent tax advisor that there would not be substantial authority for the claiming of such deduction or other benefit. If the Taxpayer incurs a Loss prior to actually realizing any tax benefit from such Loss, then the Claim shall initially be for the full amount arising from the incurrence or payment of such Loss without regard to any potential tax benefit from such Loss. However, if and to the extent the Taxpayer actually realizes a tax benefit arising from the incurrence or payment of such Loss under the principles of Section 2(d) then US Holdco shall reimburse the Account at such time, or, if subsequent to the closure of the Account, pay such amount to the Principal Stockholder or its designee. In the event that a final determination is made whereby a tax benefit described in the preceding sentence subsequently is disallowed, US Holdco may withdraw the appropriate amount from the Account. (f) If (i) the Taxpayer claims a tax benefit in respect of any Loss, (ii) such claimed tax benefit reduces the amount to be repaid to US Holdco from the Account under the terms of this Agreement, and (iii) a taxing authority subsequently claims that such tax benefit was not available to the Taxpayer, the Taxpayer will contest such contention; provided, however, that the Taxpayer shall not be required to pursue a judicial proceeding to challenge such contention if it has received an opinion of its independent tax advisor that it is not at least more likely than not that the Taxpayer will succeed in the contest. (g) Subject to Section 4(h), US Holdco's right to deliver a Request for Adjustment and to cause an adjustment to the Merger Consideration pursuant to this Agreement shall end on the Termination Date. The Termination Date shall be the third anniversary of the Closing Date unless at such date (i) US Holdco has been notified of claims, demands or proceedings against any Relevant Party or any Person required to be indemnified by any Relevant Party under currently existing obligations that it reasonably believes could result in an adjustment to the Merger Consideration pursuant to this Agreement or US Holdco reasonably believes such claims, demands or proceedings will be asserted or instituted or (ii) the amount of the adjustment to the Merger Consideration resulting from any Loss has been reduced pursuant to Section 4(d) or (e) to reflect a deduction or other tax benefit which is still subject to disallowance and which US Holdco reasonably believes is reasonably likely to be challenged by a relevant tax authority, in either of which events US Holdco may extend the Termination Date for up to one year by delivering a written notice to the Principal Stockholder signed by the President, Chief Executive Officer or Chief Financial Officer of US Holdco to such effect and stating the extended Termination Date. The extension right of the preceding sentence also may be exercised with respect to any extended Termination Date, except that the Termination Date shall not in any event be extended beyond the sixth anniversary of the Closing Date. (h) On the Termination Date, as it may have been extended pursuant to Section 4(g), US Holdco shall deliver to the Principal Stockholder a Certificate signed by the President, Chief Executive Officer or Chief Financial Officer of US Holdco specifying (i) the unresolved actually instituted and pending claims, demands or proceedings that could result in an adjustment to the Merger Consideration pursuant to this Agreement, (ii) any Claim as to which there is a dispute between the parties as to which US Holdco has delivered a Request for Adjustment prior to the Termination Date, (iii) deductions or other the tax benefits which have reduced the adjustment to the Merger Consideration resulting from the amount of any Loss pursuant to Section 4(d) or (e) which are still subject to disallowance and which US Holdco reasonably believes are reasonably likely to be challenged by a relevant tax authority (the items described in (i), (ii) and (iii) being called "Continuing Claims"), and (iv) the amount remaining in the Account that US Holdco reasonably and in good faith believes should be available to protect its rights to adjust the Merger Consideration pursuant to this Agreement (the "Required Amount"). US Holdco's right to deliver a Request for Adjustment and to adjust the Merger Consideration pursuant to this Agreement after the Termination Date shall continue only with respect to such Continuing Claims. Any amount held in the Account in excess of the Required Amount will be paid to the Principal Stockholder or its designee promptly after the Termination Date. To the extent any Continuing Claim is resolved in a manner resulting in a Loss (or in the increase of a Loss), US Holdco may withdraw from the Account an amount with respect to such Loss in accordance with this Agreement as it applied to Losses prior to the Termination Date. Upon final resolution of all Continuing Claims or, if there are not any Continuing Claims at the Termination Date, after the Termination Date, all remaining amounts in the Account will be paid promptly to the Principal Stockholder or its designee and the Account will be closed. (i) After the third anniversary of the Closing Date, US Holdco shall periodically (and not less frequently than on each anniversary of the Closing Date) determine whether the amount in the Account exceeds the amount US Holdco reasonably and in good faith believes should be available to protect US Holdco's right to adjust the Merger Consideration in accordance with this Agreement, and, in the event it is so determined, the amount of any excess shall be released to the Principal Stockholder or its designee.

Adjustment of Merger Consideration. (a) Subject If the Merger Consideration, as finally determined in accordance with this Section 2.9, is greater than the Estimated Merger Consideration (the “Positive Adjustment Amount”), then (i) Parent shall pay (or cause to Sections 4(bbe paid) an aggregate amount equal to the Positive Adjustment Amount (without interest and net of any Taxes required by Law to be withheld) to 4(ithe Paying Agent, and (ii) (inclusive) Parent and Section 5, from time Stockholders’ Representative shall deliver a joint written instruction to time following the Effective Time, US Holdco may withdraw from Escrow Agent in accordance with the Account, amounts equal Escrow Agreement directing the Escrow Agent to 60% release all of the first $300,000,000 funds in the Escrow Account to the Paying Agent, in each case, for further disbursement to Company Stockholders that have delivered a properly completed and duly executed Letter of Losses incurred after Transmittal, based on their Pro Rata Shares in accordance with the time that Losses and Ancillary Expenses exceed $700,000,000 (calculated on a pre-tax basis), but in no event more than $180,000,000 (the "Total Amount")Allocation Schedule. (b) The Principal Stockholder will not have any liability If the Merger Consideration, as finally determined in accordance with respect this Section 2.9, is less than the Estimated Merger Consideration (such shortfall, the “Negative Adjustment Amount”), then Parent and Stockholders’ Representative shall deliver a joint written instruction to the Princeton Note Matter under this Escrow Agent in accordance with the Escrow Agreement or otherwise in excess directing the Escrow Agent to release (i) to Parent from the Escrow Account the lesser of (A) the Negative Adjustment Amount and (B) all of the Total Amount funds in the Escrow Account and any obligation (ii) to the Paying Agent for further distribution to the Company Stockholders in accordance with the Allocation Schedule, all of the Principal Stockholder under this Agreement funds remaining in the Escrow Account after the release contemplated by the foregoing clause (i), if any. Notwithstanding anything to the contrary herein, if the Final Post-Closing Adjustment is a negative number, the sole and exclusive remedy of Parent shall be satisfied solely out to retain all or a portion of the funds in the Escrow Account, as set forth in the immediately preceding sentence, and Parent shall have no other recourse against the Stockholders’ Representative or the Company Stockholders for any such amount. (c) Except as otherwise specifically provided in this Agreement Any payments due and payable pursuant to Section 15 2.9.5(a) shall be made, by wire transfer of immediately available funds, no later than five (5) Business Days after the Stockholders AgreementPreliminary Adjustment Statement and the Preliminary Post-Closing Adjustment become the Final Adjustment Statement and the Final Post-Closing Adjustment, HSBC and US Holdco each acknowledges that it and its Subsidiariesrespectively, and pursuant to the full extent that HSBC or US Holdco has the legal authority to do soSection 2.9.4. For Tax purposes, their respective officers, directors, employees, stockholders (in their capacity as such) and representatives will have no remedy against any Principal Stockholder Entity with respect to any and all Losses arising directly or indirectly out of or relating to the Princeton Note Matter. In furtherance of the foregoing, HSBC and US Holdco each agrees, on behalf of itself and its Subsidiaries, and to the full extent that either has the legal authority to do so, their respective officers, directors, employees, stockholders (in their capacity as such) and representatives, to waive any and all rights, claims and causes of action they may have against any Principal Stockholder Entity, arising out of or relating directly or indirectly to the Princeton Note Matter. Except in the case of any Principal Stockholder Entity nothing herein is intended to waive any rights the Company, US Holdco or HSBC (or any of their respective Subsidiaries) may have against any other Person or any such Person in any other capacity. (d) The final amount of the adjustment to the Merger Consideration resulting from any Loss and US Holdco's right to withdraw from the Principal Stockholder's Account provided payment under this Section 4 2.9 shall be (i) increased to take account of any net tax cost incurred by the Taxpayer arising from the receipt of payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net tax benefit actually realized by the Taxpayer arising from the incurrence or payment of any such Loss. In computing the amount of any such tax cost or tax benefit, the Relevant Parties shall be deemed to recognize all other items of income, gain, loss deduction or credit before recognizing any item arising from the receipt of any payment hereunder or the incurrence or payment of any Loss; provided, however, that in calculating the tax benefit in respect of any Loss, the deductibility or other tax effect of all Losses in the aggregate will be allocated among such Losses on a pro-rata basis. The amount of a tax benefit shall be determined on the date that the Taxpayer receives an actual reduction in its tax liability (including a reduction in estimated tax payments) and shall be subject to adjustment pursuant to the remainder of this Section 4 if such tax benefit subsequently increases or decreases. (e) The Taxpayer shall claim a tax deduction (or, without limitation, any other available tax benefits) for any Losses, without regard to the adjustment to Merger Consideration made pursuant to this Agreement, except to the extent that the Taxpayer has received an opinion of its independent tax advisor that there would not be substantial authority for the claiming of such deduction or other benefit. If the Taxpayer incurs a Loss prior to actually realizing any tax benefit from such Loss, then the Claim shall initially be for the full amount arising from the incurrence or payment of such Loss without regard to any potential tax benefit from such Loss. However, if and to the extent the Taxpayer actually realizes a tax benefit arising from the incurrence or payment of such Loss under the principles of Section 2(d) then US Holdco shall reimburse the Account at such time, or, if subsequent to the closure of the Account, pay such amount to the Principal Stockholder or its designee. In the event that a final determination is made whereby a tax benefit described in the preceding sentence subsequently is disallowed, US Holdco may withdraw the appropriate amount from the Account. (f) If (i) the Taxpayer claims a tax benefit in respect of any Loss, (ii) such claimed tax benefit reduces the amount to be repaid to US Holdco from the Account under the terms of this Agreement, and (iii) a taxing authority subsequently claims that such tax benefit was not available to the Taxpayer, the Taxpayer will contest such contention; provided, however, that the Taxpayer shall not be required to pursue a judicial proceeding to challenge such contention if it has received an opinion of its independent tax advisor that it is not at least more likely than not that the Taxpayer will succeed in the contest. (g) Subject to Section 4(h), US Holdco's right to deliver a Request for Adjustment and to cause treated as an adjustment to the Merger Consideration pursuant to this Agreement shall end on the Termination Date. The Termination Date shall be the third anniversary of the Closing Date unless at such date (i) US Holdco has been notified of claims, demands or proceedings against any Relevant Party or any Person a contrary treatment is required to be indemnified by any Relevant Party under currently existing obligations that it reasonably believes could result in an adjustment to the Merger Consideration pursuant to this Agreement or US Holdco reasonably believes such claims, demands or proceedings will be asserted or instituted or (ii) the amount of the adjustment to the Merger Consideration resulting from any Loss has been reduced pursuant to Section 4(d) or (e) to reflect a deduction or other tax benefit which is still subject to disallowance and which US Holdco reasonably believes is reasonably likely to be challenged by a relevant tax authority, in either of which events US Holdco may extend the Termination Date for up to one year by delivering a written notice to the Principal Stockholder signed by the President, Chief Executive Officer or Chief Financial Officer of US Holdco to such effect and stating the extended Termination Date. The extension right of the preceding sentence also may be exercised with respect to any extended Termination Date, except that the Termination Date shall not in any event be extended beyond the sixth anniversary of the Closing DateLaw. (h) On the Termination Date, as it may have been extended pursuant to Section 4(g), US Holdco shall deliver to the Principal Stockholder a Certificate signed by the President, Chief Executive Officer or Chief Financial Officer of US Holdco specifying (i) the unresolved actually instituted and pending claims, demands or proceedings that could result in an adjustment to the Merger Consideration pursuant to this Agreement, (ii) any Claim as to which there is a dispute between the parties as to which US Holdco has delivered a Request for Adjustment prior to the Termination Date, (iii) deductions or other the tax benefits which have reduced the adjustment to the Merger Consideration resulting from the amount of any Loss pursuant to Section 4(d) or (e) which are still subject to disallowance and which US Holdco reasonably believes are reasonably likely to be challenged by a relevant tax authority (the items described in (i), (ii) and (iii) being called "Continuing Claims"), and (iv) the amount remaining in the Account that US Holdco reasonably and in good faith believes should be available to protect its rights to adjust the Merger Consideration pursuant to this Agreement (the "Required Amount"). US Holdco's right to deliver a Request for Adjustment and to adjust the Merger Consideration pursuant to this Agreement after the Termination Date shall continue only with respect to such Continuing Claims. Any amount held in the Account in excess of the Required Amount will be paid to the Principal Stockholder or its designee promptly after the Termination Date. To the extent any Continuing Claim is resolved in a manner resulting in a Loss (or in the increase of a Loss), US Holdco may withdraw from the Account an amount with respect to such Loss in accordance with this Agreement as it applied to Losses prior to the Termination Date. Upon final resolution of all Continuing Claims or, if there are not any Continuing Claims at the Termination Date, after the Termination Date, all remaining amounts in the Account will be paid promptly to the Principal Stockholder or its designee and the Account will be closed. (i) After the third anniversary of the Closing Date, US Holdco shall periodically (and not less frequently than on each anniversary of the Closing Date) determine whether the amount in the Account exceeds the amount US Holdco reasonably and in good faith believes should be available to protect US Holdco's right to adjust the Merger Consideration in accordance with this Agreement, and, in the event it is so determined, the amount of any excess shall be released to the Principal Stockholder or its designee.

Adjustment of Merger Consideration. (a) Subject The parties hereto acknowledge that the Company and the Shareholders desire to Sections 4(bsell and transfer for cash consideration, subject to the prior written consent of Parent, the assets used or useable in the Company's Reference Products Business, which consent shall not be unreasonably withheld, as described in Schedule 2.06 (a) to 4(i) (inclusive) and Section 5, from time to time following the Effective Time, US Holdco may withdraw from the Account, amounts equal to 60% of the first $300,000,000 of Losses incurred after the time that Losses and Ancillary Expenses exceed $700,000,000 (calculated on a pre-tax basis), but in no event more than $180,000,000 hereto (the "Total AmountReference Products Business"). (b) The Principal Stockholder will not have any liability with respect to the Princeton Note Matter under this Agreement or otherwise in excess of the Total Amount and any obligation of the Principal Stockholder under this Agreement shall be satisfied solely out of the Account. (c) Except as otherwise specifically provided in this Agreement and Section 15 of the Stockholders Agreement, HSBC and US Holdco each acknowledges that it and its Subsidiaries, and to the full extent that HSBC or US Holdco has the legal authority to do so, their respective officers, directors, employees, stockholders (in their capacity as such) and representatives will have no remedy against any Principal Stockholder Entity with respect to any and all Losses arising directly or indirectly out of or relating to the Princeton Note Matter. In furtherance of the foregoing, HSBC and US Holdco each agrees, on behalf of itself and its Subsidiaries, and to the full extent that either has the legal authority to do so, their respective officers, directors, employees, stockholders (in their capacity as such) and representatives, to waive any and all rights, claims and causes of action they may have against any Principal Stockholder Entity, arising out of or relating directly or indirectly to the Princeton Note Matter. Except in the case of any Principal Stockholder Entity nothing herein is intended to waive any rights the Company, US Holdco or HSBC (or any of their respective Subsidiaries) may have against any other Person or any such Person in any other capacity. (d) The final amount of the adjustment to the Merger Consideration resulting from any Loss and US Holdco's right to withdraw from the Principal Stockholder's Account provided under this Section 4 shall be (i) increased to take account of any net tax cost incurred by the Taxpayer arising from the receipt of payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net tax benefit actually realized by the Taxpayer arising from the incurrence or payment of any such Loss. In computing the amount of any such tax cost or tax benefit, the Relevant Parties shall be deemed to recognize all other items of income, gain, loss deduction or credit before recognizing any item arising from the receipt of any payment hereunder or the incurrence or payment of any Loss; provided, however, that in calculating the tax benefit in respect of any Loss, the deductibility or other tax effect of all Losses in the aggregate will be allocated among such Losses on a pro-rata basis. The amount of a tax benefit shall be determined on the date that the Taxpayer receives an actual reduction in its tax liability (including a reduction in estimated tax payments) and shall be subject to adjustment pursuant to the remainder of this Section 4 if such tax benefit subsequently increases or decreases. (e) The Taxpayer shall claim a tax deduction (or, without limitation, any other available tax benefits) for any Losses, without regard to the adjustment to Merger Consideration made pursuant to this Agreement, except to the extent that the Taxpayer has received an opinion of its independent tax advisor that there would not be substantial authority for the claiming of such deduction or other benefit. If the Taxpayer incurs a Loss prior to actually realizing any tax benefit from such Loss, then the Claim shall initially be for the full amount arising from the incurrence or payment of such Loss without regard to any potential tax benefit from such Loss. However, if and to the extent the Taxpayer actually realizes a tax benefit arising from the incurrence or payment of such Loss under the principles of Section 2(d) then US Holdco shall reimburse the Account at such time, or, if subsequent to the closure of the Account, pay such amount to the Principal Stockholder or its designee. In the event that a final determination the sale and transfer for cash consideration of all or any portion of the Reference Products Business is made whereby a tax benefit described completed by the Surviving Corporation on or before June 15, 1999, then, in such event, the preceding sentence subsequently is disallowed, US Holdco may withdraw the appropriate amount from the Account. (f) If following recalculations and adjustments shall be made: (i) the Taxpayer claims a tax benefit in respect Gross Merger Price shall be increased by an amount equal to fifty percent (50%) of the aggregate of the cash consideration received by the Surviving Corporation for (x) the Reference Products Business or any Loss, such portion thereof which is sold as contemplated hereby and (iiy) such claimed tax benefit reduces the amount services to be repaid provided by the Surviving Corporation to US Holdco from the Account under purchaser or purchasers thereof (less the terms aggregate out-of-pocket expenses actually incurred by the Surviving Corporation in connection with any such sale), up to a maximum increase of this Agreement9 17 $500,000, and (iii) a taxing authority subsequently claims that such tax benefit was not available increased amount, in addition to the TaxpayerGross Merger Price, the Taxpayer will contest such contention; provided, however, that the Taxpayer shall not be required to pursue a judicial proceeding to challenge such contention if it has received an opinion of its independent tax advisor that it is not at least more likely than not that the Taxpayer will succeed in the contest. (g) Subject to Section 4(h), US Holdco's right to deliver a Request for Adjustment and to cause an adjustment to the Merger Consideration pursuant to this Agreement shall end on the Termination Date. The Termination Date shall be the third anniversary of the Closing Date unless at such date (i) US Holdco has been notified of claims, demands or proceedings against any Relevant Party or any Person required to be indemnified by any Relevant Party under currently existing obligations that it reasonably believes could result in an adjustment to the "Adjusted Gross Merger Consideration pursuant to this Agreement or US Holdco reasonably believes such claims, demands or proceedings will be asserted or instituted or Price"; (ii) the amount Ascribed Value under Section 2.02 shall be recalculated and adjusted for purposes of Section 2.01(a) hereof (the "Adjusted Ascribed Value") by using the Adjusted Gross Merger Price in the calculation under Section 2.02 instead of the adjustment to the Gross Merger Consideration resulting from any Loss has been reduced pursuant to Section 4(d) or (e) to reflect a deduction or other tax benefit which is still subject to disallowance and which US Holdco reasonably believes is reasonably likely to be challenged by a relevant tax authority, in either of which events US Holdco may extend the Termination Date for up to one year by delivering a written notice to the Principal Stockholder signed by the President, Chief Executive Officer or Chief Financial Officer of US Holdco to such effect and stating the extended Termination Date. The extension right of the preceding sentence also may be exercised with respect to any extended Termination Date, except that the Termination Date shall not in any event be extended beyond the sixth anniversary of the Closing Date. (h) On the Termination Date, as it may have been extended pursuant to Section 4(g), US Holdco shall deliver to the Principal Stockholder a Certificate signed by the President, Chief Executive Officer or Chief Financial Officer of US Holdco specifying (i) the unresolved actually instituted and pending claims, demands or proceedings that could result in an adjustment to the Merger Consideration pursuant to this Agreement, (ii) any Claim as to which there is a dispute between the parties as to which US Holdco has delivered a Request for Adjustment prior to the Termination Date, Price; (iii) deductions or other the tax benefits which have reduced Net Merger Price shall be recalculated and adjusted based on the adjustment to Adjusted Gross Merger Price and the Merger Consideration resulting from the amount of any Loss pursuant to Section 4(d) or (e) which are still subject to disallowance and which US Holdco reasonably believes are reasonably likely to be challenged by a relevant tax authority Adjusted Ascribed Value (the items described in (i), (ii) and (iii) being called "Continuing ClaimsAdjusted Net Merger Price"), and ; (iv) the amount remaining in Aggregate Parent Common Stock Consideration shall be recalculated and adjusted based on the Account that US Holdco reasonably Adjusted Net Merger Price and in good faith believes should be available to protect its rights to adjust the Merger Consideration pursuant to this Agreement Average Price (the "Required AmountAdjusted Aggregate Parent Common Stock Consideration"). US Holdco's right to deliver a Request for Adjustment and to adjust ; (v) the Merger Consideration pursuant to this Agreement after the Termination Date shall continue only with respect to such Continuing Claims. Any amount held in the Account in excess of the Required Amount will be paid to the Principal Stockholder or its designee promptly after the Termination Date. To the extent any Continuing Claim is resolved in a manner resulting in a Loss (or in the increase of a Loss), US Holdco may withdraw from the Account an amount with respect to such Loss in accordance with this Agreement as it applied to Losses prior to the Termination Date. Upon final resolution of all Continuing Claims or, if there are not any Continuing Claims at the Termination Date, after the Termination Date, all remaining amounts in the Account will be paid promptly to the Principal Stockholder or its designee and the Account will be closed. (i) After the third anniversary of the Closing Date, US Holdco shall periodically (and not less frequently than on each anniversary of the Closing Date) determine whether the amount in the Account exceeds the amount US Holdco reasonably and in good faith believes should be available to protect US Holdco's right to adjust the Merger Consideration in accordance with this Agreement, and, in the event it is so determined, the amount of any excess Exchange Value shall be released to recalculated and adjusted using the Principal Stockholder or its designeeAdjusted Aggregate Parent Common Stock Consideration (the "Adjusted Exchange Value"); (vi) the Modified Petra Rights shall be recalculated and adjusted using the Adjusted Exchange Value; and (vii) the SARs under Section 2.01(d) hereof shall be recalculated and adjusted based on the Adjusted Exchange Value.

Adjustment of Merger Consideration. (a) Subject to Section 8(a) above and Sections 4(b) to 4(i) (inclusive8(e) and Section 58(f) below, the amount of the Merger Consideration may be decreased from time to time following the Effective Time, US Holdco may withdraw from the Account, amounts equal to 60% of the first $300,000,000 of Losses incurred after the time that Losses and Ancillary Expenses exceed $700,000,000 (calculated on a pre-tax basis), but in no event more than $180,000,000 (the "Total Amount"). (b) The Principal Stockholder will not have any liability with respect to the Princeton Note Matter under this Agreement or otherwise in excess of the Total Amount and any obligation of the Principal Stockholder under this Agreement shall be satisfied solely out of the Account. (c) Except as otherwise specifically provided in this Agreement and Section 15 of the Stockholders Agreement, HSBC and US Holdco each acknowledges that it and its Subsidiaries, and to the full extent that HSBC or US Holdco has the legal authority to do soBuyer, Surviving Corporation and each of their respective officers, directors, employeesagents, stockholders and each person, if any, who controls Buyer or Transitory Subsidiary within the meaning of the Securities Act (each a "Buyer Indemnified Party" and collectively, the "Buyer Indemnified Parties") incurs or suffers any and all debts, obligations and other Liabilities, monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid to enforce the provisions of this Section 8 and amounts paid in their capacity as suchsettlement, interest, court costs, costs of investigators, reasonable fees and out-of-pocket expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) ("Damages") resulting from, relating to or constituting: (i) fraud, intentional misrepresentation or a deliberate or willful breach by Target of any of its representations or warranties under this Agreement (including any representations or warranties deemed to have been made by the delivery of any certificate or instrument delivered pursuant to this Agreement); (ii) any other misrepresentation or breach of warranty of Target contained in this Agreement (including any misrepresentation or breach of warranty deemed to have been made by the delivery of any certificate or instrument delivered pursuant to this Agreement), or by reason of any Proceeding asserted or instituted arising out of any matter constituting a breach of such representations or warranties (including any breach of any representations or warranties deemed to have been made by the delivery of any certificate or instrument delivered pursuant to this Agreement); (iii) any breach by Target of any of its obligations or covenants contained in this Agreement, unless specifically waived in writing by Buyer at or prior to the Effective Time; (iv) any Liability of Target for returns, chargebacks, rebates, allowances or credits (including rebates to social and representatives will have no remedy against welfare systems and amounts paid to third parties on account of rebate payments) related to (A) Products sold prior to the Closing or (B) the Inventory, in excess of [ * * * ]; (v) any Principal Stockholder Entity Liability paid by the Surviving Corporation with respect to holders of Dissenting Shares as a result of the transactions contemplated hereby in excess of amounts that holders of Dissenting Shares would have received had they accepted the Merger Consideration; or (vi) any and all Losses Liability arising directly or indirectly out of or relating to any inaccuracy in the Princeton Note Matter. In furtherance of the foregoing, HSBC Share and US Holdco each agrees, on behalf of itself and its Subsidiaries, and to the full extent that either has the legal authority to do so, their respective officers, directors, employees, stockholders (in their capacity as such) and representatives, to waive any and all rights, claims and causes of action they may have against any Principal Stockholder EntityOption Exchange Schedule, arising out of any materials distributed in connection with the Stockholder Vote, or relating directly or indirectly to the Princeton Note Matter. Except in the case of any Principal Stockholder Entity nothing herein is intended to waive any rights the Company, US Holdco or HSBC (or any of their respective Subsidiaries) may have against any other Person or any such Person in any other capacity. (d) The final amount of the adjustment to the Merger Consideration resulting arising from any Loss and US Holdco's right to withdraw from the Principal Stockholder's Account provided under this Section 4 shall be (i) increased to take account of any net tax cost incurred action or inaction by the Taxpayer arising from the receipt of payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net tax benefit actually realized by the Taxpayer arising from the incurrence or payment of any such Loss. In computing the amount of any such tax cost or tax benefit, the Relevant Parties shall be deemed to recognize all other items of income, gain, loss deduction or credit before recognizing any item arising from the receipt of any payment hereunder or the incurrence or payment of any Loss; provided, however, that in calculating the tax benefit in respect of any Loss, the deductibility or other tax effect of all Losses in the aggregate will be allocated among such Losses on a pro-rata basis. The amount of a tax benefit shall be determined on the date that the Taxpayer receives an actual reduction in its tax liability (including a reduction in estimated tax payments) and shall be subject to adjustment pursuant to the remainder of this Section 4 if such tax benefit subsequently increases or decreasesStockholder Representative. (e) The Taxpayer shall claim a tax deduction (or, without limitation, any other available tax benefits) for any Losses, without regard to the adjustment to Merger Consideration made pursuant to this Agreement, except to the extent that the Taxpayer has received an opinion of its independent tax advisor that there would not be substantial authority for the claiming of such deduction or other benefit. If the Taxpayer incurs a Loss prior to actually realizing any tax benefit from such Loss, then the Claim shall initially be for the full amount arising from the incurrence or payment of such Loss without regard to any potential tax benefit from such Loss. However, if and to the extent the Taxpayer actually realizes a tax benefit arising from the incurrence or payment of such Loss under the principles of Section 2(d) then US Holdco shall reimburse the Account at such time, or, if subsequent to the closure of the Account, pay such amount to the Principal Stockholder or its designee. In the event that a final determination is made whereby a tax benefit described in the preceding sentence subsequently is disallowed, US Holdco may withdraw the appropriate amount from the Account. (f) If (i) the Taxpayer claims a tax benefit in respect of any Loss, (ii) such claimed tax benefit reduces the amount to be repaid to US Holdco from the Account under the terms of this Agreement, and (iii) a taxing authority subsequently claims that such tax benefit was not available to the Taxpayer, the Taxpayer will contest such contention; provided, however, that the Taxpayer shall not be required to pursue a judicial proceeding to challenge such contention if it has received an opinion of its independent tax advisor that it is not at least more likely than not that the Taxpayer will succeed in the contest. (g) Subject to Section 4(h), US Holdco's right to deliver a Request for Adjustment and to cause an adjustment to the Merger Consideration pursuant to this Agreement shall end on the Termination Date. The Termination Date shall be the third anniversary of the Closing Date unless at such date (i) US Holdco has been notified of claims, demands or proceedings against any Relevant Party or any Person required to be indemnified by any Relevant Party under currently existing obligations that it reasonably believes could result in an adjustment to the Merger Consideration pursuant to this Agreement or US Holdco reasonably believes such claims, demands or proceedings will be asserted or instituted or (ii) the amount of the adjustment to the Merger Consideration resulting from any Loss has been reduced pursuant to Section 4(d) or (e) to reflect a deduction or other tax benefit which is still subject to disallowance and which US Holdco reasonably believes is reasonably likely to be challenged by a relevant tax authority, in either of which events US Holdco may extend the Termination Date for up to one year by delivering a written notice to the Principal Stockholder signed by the President, Chief Executive Officer or Chief Financial Officer of US Holdco to such effect and stating the extended Termination Date. The extension right of the preceding sentence also may be exercised with respect to any extended Termination Date, except that the Termination Date shall not in any event be extended beyond the sixth anniversary of the Closing Date. (h) On the Termination Date, as it may have been extended pursuant to Section 4(g), US Holdco shall deliver to the Principal Stockholder a Certificate signed by the President, Chief Executive Officer or Chief Financial Officer of US Holdco specifying (i) the unresolved actually instituted and pending claims, demands or proceedings that could result in an adjustment to the Merger Consideration pursuant to this Agreement, (ii) any Claim as to which there is a dispute between the parties as to which US Holdco has delivered a Request for Adjustment prior to the Termination Date, (iii) deductions or other the tax benefits which have reduced the adjustment to the Merger Consideration resulting from the amount of any Loss pursuant to Section 4(d) or (e) which are still subject to disallowance and which US Holdco reasonably believes are reasonably likely to be challenged by a relevant tax authority (the items described in (i), (ii) and (iii) being called "Continuing Claims"), and (iv) the amount remaining in the Account that US Holdco reasonably and in good faith believes should be available to protect its rights to adjust the Merger Consideration pursuant to this Agreement (the "Required Amount"). US Holdco's right to deliver a Request for Adjustment and to adjust the Merger Consideration pursuant to this Agreement after the Termination Date shall continue only with respect to such Continuing Claims. Any amount held in the Account in excess of the Required Amount will be paid to the Principal Stockholder or its designee promptly after the Termination Date. To the extent any Continuing Claim is resolved in a manner resulting in a Loss (or in the increase of a Loss), US Holdco may withdraw from the Account an amount with respect to such Loss in accordance with this Agreement as it applied to Losses prior to the Termination Date. Upon final resolution of all Continuing Claims or, if there are not any Continuing Claims at the Termination Date, after the Termination Date, all remaining amounts in the Account will be paid promptly to the Principal Stockholder or its designee and the Account will be closed. (i) After the third anniversary of the Closing Date, US Holdco shall periodically (and not less frequently than on each anniversary of the Closing Date) determine whether the amount in the Account exceeds the amount US Holdco reasonably and in good faith believes should be available to protect US Holdco's right to adjust the Merger Consideration in accordance with this Agreement, and, in the event it is so determined, the amount of any excess shall be released to the Principal Stockholder or its designee.