Common use of Aggregate Purchase Price Adjustments Clause in Contracts

Aggregate Purchase Price Adjustments. (a) As promptly as possible, but in any event within seventy (70) days after the Closing Date, Purchaser shall cause to be prepared and delivered to the Seller Representative a statement (the “Closing Statement,” and the date on which the Closing Statement is delivered to the Seller Representative, the “Delivery Date”) setting forth Purchaser’s calculation of the amount of the Cash Equivalents, Indebtedness, Transaction Expenses (including any of those which were not paid as of the Closing pursuant to Section 1.04(c)), Closing Working Capital, the Aggregate Purchase Price and the adjustment necessary to reconcile the Estimated Aggregate Purchase Price to the Aggregate Purchase Price. The Closing Statement shall be prepared in a manner consistent with the Accounting Principles and in accordance with the provisions of this Agreement. In preparing the Closing Statement: (x) any and all effects on the assets or liabilities of the Company of any distributions, financing or refinancing arrangements entered into by Purchaser or by the Company on or after the Closing Date or any other transaction entered into by Purchaser or by the Company on or after the Closing Date in connection with the consummation of the transactions contemplated by this Agreement shall be entirely disregarded; (y) it shall be assumed that the Company and its lines of business shall be continued as a going concern; and (z) there shall not be taken into account any of the plans, transactions or changes that Purchaser intends to initiate or make or cause to be initiated or made on or after the Closing Date with respect to the Company or its businesses or assets, or any facts or circumstances that are unique or particular to Purchaser or any assets or liabilities of Purchaser, or any obligation for the payment of the Aggregate Purchase Price hereunder. (b) During the Dispute Period (as defined below) and thereafter until resolution of the Final Aggregate Purchase Price, Purchaser shall, and shall cause the Company to, provide the Seller Representative (and its representatives) with reasonable access during normal business hours to the books, records, supporting data, facilities and personnel of the Company for purposes of the Seller Representative’s review of the Closing Statement and reasonably cooperate with the Seller Representative (and its representatives) in connection with such review. (c) The Seller Representative shall have forty-five (45) days following the Delivery Date (the “Dispute Period”) to review the Closing Statement. If the Seller Representative has any objections to the Closing Statement, the Seller Representative shall deliver to Purchaser a statement setting forth its objections thereto (a “Dispute Notice”), which shall identify in reasonable detail those items and amounts set forth on the Closing Statement to which the Seller Representative objects and the Seller Representative’s basis for such objection (the “Disputed Items”). If a Dispute Notice is not delivered to Purchaser during the Dispute Period, the Closing Statement as prepared by Purchaser shall be deemed accepted and agreed to by the Seller Representative and shall be final, binding and non-appealable by the parties hereto. If the Seller Representative delivers a Dispute Notice to Purchaser, Purchaser and the Seller Representative shall attempt to resolve the Disputed Items within thirty (30) days following the date of delivery of the Dispute Notice. If Purchaser and Seller Representative reach an agreement as to the final determination of the Closing Statement and the resulting Aggregate Purchase Price, the Aggregate Purchase Price so agreed to shall be deemed final and binding upon the parties and enforceable by a court of competent jurisdiction. If Purchaser and the Seller Representative are unable to resolve any Disputed Item within such thirty (30) day period, Purchaser and the Seller Representative shall mutually engage and submit such Disputed Item to, and the same shall be finally resolved in accordance with the provisions of this Agreement by, Xxxx, Xxxxxxx & Company, P.C. or, if such firm is not available or unwilling to accept such engagement, such other impartial nationally recognized independent certified public accounting firm mutually acceptable to Purchaser and the Seller Representative (the “Independent Accountant”). The proposed Aggregate Purchase Price reflected in Purchaser’s submission to the Independent Accountant may not be lower than the amount reflected by Purchaser in its Closing Statement delivered pursuant to clause (a) above, and the proposed Aggregate Purchase Price reflected in Seller Representative’s submission to the Independent Accountant may not be higher than the amount reflected in its initial Dispute Notice delivered pursuant to this clause (c). Prior to such engagement, the Independent Accountant shall confirm to Purchaser and the Seller Representative as to its independence with respect to such engagement. Purchaser and the Seller Representative shall use their respective commercially reasonable efforts to promptly engage the Independent Accountant and to cause the Independent Accountant to resolve any Disputed Items as soon as practicable, but in any event within thirty (30) days (or such other period of time as Purchaser and Seller Representative shall agree) after engagement by Purchaser and the Seller Representative, and to set forth in a written statement its final determination of the Closing Statement and the resulting Aggregate Purchase Price based upon its resolution of such Disputed Items and the items and amounts with respect to the Closing Statement that were not Disputed Items. The Independent Accountant shall review the written submissions of Purchaser and the Seller Representative and base its determination solely on such submissions. In resolving any Disputed Item, the Independent Accountant may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the least value for such item claimed by either party in its submissions to the Independent Accountant. The parties hereto agree that all adjustments shall be made without regard to materiality. The decision of the Independent Accountant shall be deemed final and binding upon the parties and enforceable by a court of competent jurisdiction. Each party shall bear its own costs and expenses in connection with the resolution of such Disputed Items by the Independent Accountant. The fees and expenses of the Independent Accountant shall be allocated between Purchaser and Sellers so that the amount of fees and expenses paid by Sellers (with the remainder of such amount being paid by Purchaser) shall be equal to the product of (x) and (y), where (x) is the aggregate amount of such fees and expenses, and where (y) is a fraction, the numerator of which is an amount equal to the amount of the Aggregate Purchase Price as submitted by the Seller Representative to the Independent Accountant minus the amount of the Aggregate Purchase Price as so determined by the Independent Accountant and the denominator of which is equal to the amount of the Aggregate Purchase Price as submitted by the Seller Representative to the Independent Accountant minus the amount of the Aggregate Purchase Price as submitted by Purchaser to the Independent Accountant. (d) If the Aggregate Purchase Price, based upon the final determination pursuant to Section 1.05(a) and Section 1.05(c) (the “Final Aggregate Purchase Price”), exceeds the Estimated Aggregate Purchase Price (such excess, the “Upward Adjustment Amount”), then promptly (but in any event within five (5) Business Days after the determination of the Final Aggregate Purchase Price), Purchaser shall (i) cause the Company to pay each Optionholder, in respect of his or her Options, such Optionholder’s Percentage Share of the Upward Adjustment Amount less applicable withholding and (ii) pay the remaining balance of the Upward Adjustment Amount pursuant to instructions furnished by the Seller Representative (for the benefit of the Common Stockholders in respect of their Common Shares), and Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay from the balance of the Working Capital Escrow Amount (plus all earnings thereon) in the Escrow Account (A) to the Company 5.0208% of the Working Capital Escrow Amount (plus all earnings thereon) and (B) to the Seller Representative (to be paid to each Common Stockholder by the Seller Representative in accordance with each such Common Stockholder’s Percentage Share in respect of such Common Stockholder’s Common Shares) the balance of the Working Capital Escrow Amount (plus all earnings thereon). Promptly following the Company’s receipt of the amount paid to the Company pursuant to clause (ii)(A) of this Section 1.05(d) (and in no event later than the next regular payroll period), Purchaser shall cause the Company to issue a check or to make a wire transfer to each Optionholder, in respect of such Optionholder’s Options, such Optionholder’s Percentage Share of such amount, less applicable withholding. (e) If the Estimated Aggregate Purchase Price exceeds the Final Aggregate Purchase Price (such excess, the “Downward Adjustment Amount”), then promptly (but in any event within five (5) Business Days after the determination of the Final Aggregate Purchase Price), Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay to Purchaser the Downward Adjustment Amount from the Escrow Account, with the Downward Adjustment Amount to be deducted from the Working Capital Escrow Amount (including any earnings thereon). If the Downward Adjustment Amount exceeds the Working Capital Escrow Amount (plus all earnings thereon), Purchaser shall be entitled (but not required) in its sole discretion to recover the amount of such excess from the Indemnity Escrow Amount, and Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay to Purchaser the amount of any such excess from the Indemnity Escrow Amount; provided, however, that in lieu of recovering such amounts from the Indemnity Escrow Amount, Purchaser may require that each Common Stockholder and each Optionholder directly pays its Percentage Share of such amounts to Purchaser. If the Downward Adjustment Amount does not exceed the Working Capital Escrow Amount (plus all earning thereon), Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay from the Escrow Account (i) to the Company 5.0208% of the amount by which the Working Capital Escrow Amount (plus all earnings thereon) exceeds the Downward Adjustment Amount (such excess, the “Excess Adjustment Release Amount”) and (ii) to the Seller Representative (to be paid to each Common Stockholder by the Seller Representative, in accordance with each such Common Stockholder’s Percentage Share in respect of such Common Stockholder’s Common Shares) the remaining balance of the Excess Adjustment Release Amount. Promptly following the Company’s receipt of the amount paid to the Company pursuant to clause (i) of this Section 1.05(e) (and in no event later than the next regular payroll period), Purchaser shall cause the Company to issue a check to each Optionholder, in respect of such Optionholder’s Options, such Optionholder’s Percentage Share of such amount, less applicable withholding. Any disbursements of the Working Capital Escrow Amount to the Sellers’ shall be net of the Sellers’ share of the fees and expenses of the Independent Accountant, if any, which amount shall be paid from the Working Capital Escrow to the Escrow Agent. (f) Any adjustment pursuant to Sections 1.05(d) or Section 1.05(e) above shall, to the extent permitted by Law, be deemed for Tax purposes to be an adjustment to the Aggregate Purchase Price.

Aggregate Purchase Price Adjustments. (a) As promptly as possible, but in any event within seventy sixty (7060) days after the Closing Date, Purchaser Purchasers shall cause to be prepared and delivered to the Seller Representative Parent a statement (the “"Closing Statement,” " and the date on which the Closing Statement is delivered to the Seller RepresentativeParent, the “"Delivery Date”") setting forth Purchaser’s Purchasers' calculation of the amount of the Cash Equivalents, Indebtedness, Transaction Expenses (including any of those which were not paid as of the Closing pursuant to Section 1.04(c)), Closing Working CapitalNon-Inventory NWC and Included Inventory, the resulting Aggregate Purchase Price and the adjustment necessary to reconcile the Estimated Aggregate Purchase Price to the Aggregate Purchase Price, along with reasonable supporting documentation with respect to the foregoing. If Purchasers fail to timely deliver the Closing Statement in accordance with this Section 1.4(a) within such sixty (60) day period, then, at the election of Parent, (i) the written statement setting forth the Estimated Aggregate Purchase Price delivered by Parent to Purchasers pursuant to Section 1.3(b) shall be deemed to be the final determination of the Closing Statement (including the determination of the Final Purchase Price) for all purposes herein or (ii) Parent may pursue any other remedy available under this Agreement (including to seek specified performance in accordance with Section 4.16 to compel Purchasers to determine the calculation of and prepare and deliver to Parent the Closing Statement and calculations required by the first sentence of this Section 1.4(a)). Purchasers shall promptly reimburse Parent upon Xxxxxx's request for all fees, costs and expenses incurred by, or on behalf of, Parent in connection with the foregoing clause (ii) above. The Closing Statement shall be prepared in a manner consistent with the Agreed Accounting Principles and in accordance with the provisions of definitions set forth in this Agreement. In preparing the Closing Statement: (xA) any and all effects on the assets or liabilities of the Company Business of any distributions, financing or refinancing arrangements entered into by Purchaser or by the Company Purchasers on or after the Closing Date or any other transaction entered into by Purchaser or by the Company Purchasers on or after the Closing Date in connection with the consummation of the transactions contemplated by this Agreement shall be entirely disregarded; (y) it shall be assumed that the Company and its lines of business shall be continued as a going concern; and (zB) there shall not be taken into account any of the plans, transactions or changes that Purchaser intends Purchasers intend to initiate or make or cause to be initiated or made on or after the Closing Date with respect to the Company Business or its businesses or assetsany of the Business Assets, or any facts or circumstances that are unique or particular to Purchaser Purchasers or any assets or liabilities of PurchaserPurchasers, or any obligation for the payment of the Aggregate Purchase Price hereunder. (b) During the Dispute Period (as defined below) and thereafter until resolution of the Final Aggregate Purchase Price, Purchaser Purchasers shall, and shall cause the Company their respective Affiliates to, provide the Seller Representative Sellers (and its their respective representatives) with reasonable access during normal business hours to the books, records, supporting data, facilities and personnel of the Company Purchasers for purposes of the Seller Representative’s Sellers' review of the Closing Statement and reasonably cooperate with the Seller Representative Sellers (and its their respective representatives) in connection with such review. (c) The Seller Representative Parent shall have forty-five thirty (4530) days following the Delivery Date (the “"Dispute Period”") to review the Closing Statement. If the Seller Representative Parent has any objections to the Closing Statement, the Seller Representative Parent shall deliver to Purchaser Purchasers a statement setting forth its objections thereto (a “"Dispute Notice”"), which shall identify in reasonable detail those items and amounts set forth on the Closing Statement to which the Seller Representative Parent objects and the Seller Representative’s basis for such objection (the “"Disputed Items”"). If a Dispute Notice is not delivered to Purchaser Purchasers during the Dispute Period, the Closing Statement as prepared by Purchaser Purchasers shall be deemed accepted and agreed to by the Seller Representative Parent and shall be final, binding and non-appealable by the parties hereto. If the Seller Representative Parent delivers a Dispute Notice to PurchaserPurchasers, Purchaser Purchasers and the Seller Representative Parent shall attempt to resolve the Disputed Items within thirty (30) days following the date of after delivery of the Dispute Notice. If Purchaser Purchasers and Seller Representative reach an agreement as to the final determination of the Closing Statement and the resulting Aggregate Purchase Price, the Aggregate Purchase Price so agreed to shall be deemed final and binding upon the parties and enforceable by a court of competent jurisdiction. If Purchaser and the Seller Representative Parent are unable to resolve any Disputed Item Items within such thirty (30) day period, Purchaser Purchasers and the Seller Representative Parent shall mutually engage and submit such Disputed Item Items to, and the same shall be finally resolved in accordance with the Agreed Accounting Principles and the other provisions of this Agreement by, Xxxx, Xxxxxxx & Company, P.C. Deloitte LLP or, if such firm is not available or unwilling to accept such engagement, such other impartial nationally recognized independent certified public accounting firm mutually acceptable to Purchaser Purchasers and the Seller Representative Parent (the “"Independent Accountant”"). The proposed Aggregate Purchase Price reflected in Purchaser’s submission to the Independent Accountant may not be lower than the amount reflected by Purchaser in its Closing Statement delivered pursuant to clause (a) above, and the proposed Aggregate Purchase Price reflected in Seller Representative’s submission to the Independent Accountant may not be higher than the amount reflected in its initial Dispute Notice delivered pursuant to this clause (c). Prior to such engagement, the Independent Accountant shall confirm to Purchaser act as an accounting expert only and the Seller Representative not as to its independence with respect to such engagementan arbitrator. Purchaser Purchasers and the Seller Representative Parent shall use their respective commercially reasonable efforts to promptly engage the Independent Accountant and to cause the Independent Accountant to resolve any the Disputed Items as soon as practicable, but in any event within thirty (30) days (or such other period of time as Purchaser Purchasers and Seller Representative Parent shall agree) after engagement by Purchaser Purchasers and the Seller RepresentativeParent, and to set forth in a written statement its final determination of the Closing Statement and the resulting Aggregate Purchase Price based upon its resolution of such Disputed Items and the items and amounts with respect to the Closing Statement that were not Disputed Items. The Independent Accountant shall review the written submissions of Purchaser and the Seller Representative and base its determination solely on such submissions. In resolving any Disputed Item, the Independent Accountant may not assign a value to any item greater than the greatest value for such item claimed by either party Party or less than the least value for such item claimed by either party in its submissions to the Independent Accountant. The parties hereto agree that all adjustments shall be made without regard to materialityParty. The decision of the Independent Accountant shall (i) be deemed final and binding upon the parties Parties and enforceable by a court of competent jurisdiction, absent manifest error or fraud and (ii) constitute an expert determination (and, for the avoidance of doubt, not an arbitral award). Each party Party shall bear its own costs and expenses in connection with the resolution of such Disputed Items by the Independent Accountant. The fees and expenses of the Independent Accountant shall be allocated between Purchaser Purchasers and Sellers Parent so that the amount of fees and expenses paid by Sellers Parent (with the remainder of such amount being paid by PurchaserPurchasers) shall be equal to the product of (x) and (y), where (x) is the aggregate amount of such fees and expenses, and where (y) is a fraction, the numerator of which is an amount equal to the amount of the Aggregate Purchase Price in dispute that is ultimately unsuccessfully disputed by Parent (as submitted by the Seller Representative to the Independent Accountant minus the amount of the Aggregate Purchase Price as so determined by the Independent Accountant Accountant) and the denominator of which is equal to the amount total value in dispute. (d) The Parties acknowledge and agree that, (i) any Upward Adjustment Amount or Downward Adjustment Amount, as applicable, shall be determined on a separate and individual basis for each of the American Seller, Sunrise Mexico and SunOpta Mexico; (ii) each Seller shall, independently, adjust the Aggregate Purchase Price as submitted received by the Seller Representative to the Independent Accountant minus the amount of an Upward Adjustment Amount or a Downward Adjustment Amount; and (iii) NTUS and NTMX shall, independently, adjust the Aggregate Purchase Price as submitted paid by Purchaser to the Independent Accountanta corresponding Upward Adjustment Amount or a corresponding Downward Adjustment Amount. (de) If the Aggregate Purchase Price, based upon the final determination pursuant to Section 1.05(aSections 1.4(a) and Section 1.05(c1.4(c) (the “"Final Aggregate Purchase Price”"), exceeds the Estimated Aggregate Purchase Price (such excess, the “"Upward Adjustment Amount”"), then promptly (but in any event within five (5) Business Days after the determination of the Final Aggregate Purchase Price), Purchaser shall ): (i) cause Purchasers shall pay to Sellers, by wire transfer of immediately available funds to the Company account(s) designated by Sellers, (it being understood that each of the Mexican Sellers shall designate accounts opened under their respective names), an amount equal to pay each Optionholder, in respect of his or her Options, such Optionholder’s Percentage Share of the Upward Adjustment Amount less applicable withholding and (to the extent permitted by Purchasers' existing credit facilities executed in connection with the consummation of the transactions contemplated hereby); and (ii) pay in the remaining balance event that the payment (if any) described in the foregoing clause (i) is less than the Upward Adjustment Amount, then, (x) NTUS and the American Seller shall execute, or cause to be executed, an amendment to the STB US, in a form reasonably acceptable to each of Purchasers and Sellers, providing for an increase to the principal amount thereunder, effective as of the Closing Date, equal to (A) the Upward Adjustment Amount pursuant related to instructions furnished by the Seller Representative US Business Assets, minus (for B) the benefit amount of the Common Stockholders payment (if any) described in respect the foregoing clause (i) already paid to the American Seller related to the US Business Assets; and (y) NTUS or NTMX, as the case may be, (given that NTUS is purchasing the MX Included Inventory and NTMX is purchasing all other included MX Business Assets) and SunOpta Mexico shall execute, or cause to be executed, an amendment to the STB MX, in a form reasonably acceptable to each of their Common Shares)Purchasers and Sellers, and Purchaser and providing for an increase to the Seller Representative shall jointly instruct the Escrow Agent to pay from the balance principal amount thereunder, effective as of the Working Capital Escrow Amount (plus all earnings thereon) in the Escrow Account Closing Date, equal to (A) the Upward Adjustment Amount related to the Company 5.0208% of the Working Capital Escrow Amount (plus all earnings thereon) and MX Business Assets, minus (B) the amount of the payment (if any) described in the foregoing clause (i) already paid to SunOpta Mexico related to the Seller Representative (to be paid to each Common Stockholder by the Seller Representative in accordance with each such Common Stockholder’s Percentage Share in respect of such Common Stockholder’s Common Shares) the balance of the Working Capital Escrow Amount (plus all earnings thereon). Promptly following the Company’s receipt of the amount paid to the Company pursuant to clause (ii)(A) of this Section 1.05(d) (and in no event later than the next regular payroll period), Purchaser shall cause the Company to issue a check or to make a wire transfer to each Optionholder, in respect of such Optionholder’s Options, such Optionholder’s Percentage Share of such amount, less applicable withholding.MX Business Assets; and (ef) If the Estimated Aggregate Purchase Price exceeds the Final Aggregate Purchase Price (such excess, the “"Downward Adjustment Amount”"), then promptly (but in any event within five (5) Business Days after the determination of the Final Aggregate Purchase Price)): (i) the American Seller and/or SunOpta Mexico, Purchaser as the case may be, on the one hand, and NTUS and/or NTMX, as the Seller Representative case may be, on the other hand, shall jointly instruct execute, or cause to be executed, an amendment to the Escrow Agent STB MX and/or the STB US, as applicable, based upon to pay to Purchaser the which entities any such Downward Adjustment Amount from applies, in a form(s) reasonably acceptable to each of Purchasers and Sellers, providing for a decrease to the Escrow Accountprincipal amount under the STB MX or the STB US, with as applicable, effective as of the Closing Date, equal to the Downward Adjustment Amount to be deducted from such applicable entity, but not to exceed $5,000,000 in the Working Capital Escrow Amount aggregate (including any earnings thereonthe "STB Threshold"). If ; and (ii) in the event that the aggregate decrease to the principal amount under the STB MX and/or the STB US, as applicable, described in the foregoing clause (i) is less than the Downward Adjustment Amount exceeds the Working Capital Escrow Amount (plus all earnings thereon), Purchaser shall be entitled (but not required) in its sole discretion to recover the amount of such excess from the Indemnity Escrow Amount, and Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay to Purchaser the amount of any applicable Seller(s) experiencing such excess from the Indemnity Escrow Amount; provided, however, that in lieu of recovering such amounts from the Indemnity Escrow Amount, Purchaser may require that each Common Stockholder and each Optionholder directly pays its Percentage Share of such amounts to Purchaser. If the additional Downward Adjustment Amount does not exceed the Working Capital Escrow Amount (plus all earning thereon), Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay from the Escrow Account (i) to the Company 5.0208% of the amount by which the Working Capital Escrow Amount (plus all earnings thereon) exceeds the Downward Adjustment Amount (such excess, the “Excess Adjustment Release Amount”) and (ii) to the Seller Representative (or cause to be paid to each Common Stockholder the applicable Purchaser(s) benefiting from such additional Downward Adjustment Amount, by wire transfer of immediately available funds to the Seller Representativeaccount(s) designated by Purchaser(s), in accordance with each such Common Stockholder’s Percentage Share in respect of such Common Stockholder’s Common Sharesan amount equal to (A) the remaining balance of Downward Adjustment Amount, minus (B) the Excess Adjustment Release Amount. Promptly following the Company’s receipt of the amount paid to the Company pursuant to clause (i) of this Section 1.05(e) (and in no event later than the next regular payroll period), Purchaser shall cause the Company to issue a check to each Optionholder, in respect of such Optionholder’s Options, such Optionholder’s Percentage Share of such amount, less applicable withholding. Any disbursements of the Working Capital Escrow Amount to the Sellers’ shall be net of the Sellers’ share of the fees and expenses of the Independent Accountant, if any, which amount shall be paid from the Working Capital Escrow to the Escrow AgentSTB Threshold. (fg) Any adjustment pursuant Sellers and Purchasers agree to Sections 1.05(d) or report each payment made under this Section 1.05(e) above shall, to the extent permitted by Law, be deemed for Tax purposes to be 1.4 as an adjustment to the Aggregate Purchase PricePrice for Tax purposes to the extent permitted by applicable Law and shall file all Tax Returns in a manner consistent with the foregoing.

Aggregate Purchase Price Adjustments. (a) As promptly as possible, but in any event within seventy ninety (7090) days after the Closing Date, Purchaser shall cause to be prepared and delivered to the Seller Representative a consolidated balance sheet of the Company Group as of immediately prior to the Closing (the “Closing Balance Sheet”) and a statement (together with the Closing Balance Sheet, the “Closing Statement,” and the date on which the Closing Statement is delivered to the Seller RepresentativeSeller, the “Delivery Date”) setting forth forth, in reasonable detail and with reasonable supporting documentation, Purchaser’s calculation of the amount of the of: (i) Cash Equivalents, Indebtedness, Transaction Expenses (including any of those which were not paid as of the Closing pursuant to Section 1.04(c)), Indebtedness and Closing Working Capital, (ii) Transaction Expenses, (iii) the Aggregate Purchase Price and (iv) the adjustment necessary to reconcile the Estimated Aggregate Purchase Price to the Aggregate Purchase Price. The Closing Statement shall be prepared in a manner consistent with GAAP (except as modified by the Accounting Principles Closing Working Capital Schedule attached as Exhibit C) and in accordance with the provisions of definitions set forth in this Agreement. In preparing the Closing Statement: (x) any and all effects on the assets or liabilities of the Company Group of any distributions, financing or refinancing arrangements entered into by Purchaser Purchaser, the Seller or by the Company on Group at or after the Closing Date or any other transaction entered into by Purchaser Purchaser, the Seller or by the Company on Group at or after the Closing Date in connection with the consummation of the transactions contemplated by this Agreement Transactions shall be entirely disregarded; (y) it shall be assumed that the Company Group and its lines of business shall be continued as a going concern; , and (z) there shall not be taken into account any of the plans, transactions or changes that Purchaser intends to initiate or make or cause to be initiated or made on at or after the Closing Date with respect to the Company Group or its businesses or assets, or any facts or circumstances that are unique or particular to Purchaser or any assets or liabilities of Purchaser, or any obligation for the payment of the Aggregate Purchase Price hereunder. (b) During the Dispute Period (as defined below) and thereafter until resolution of the Final Aggregate Purchase Price, Purchaser shall, and shall cause the Company Group to, provide the Seller Representative (and its representatives) with reasonable access during normal business hours to the books, records, supporting data, facilities and personnel of the Company Group for purposes of the Seller RepresentativeSeller’s review of the Closing Statement and reasonably cooperate with the Seller Representative (and its representatives) in connection with such review. (c) The Seller Representative shall have forty-five (45) days following the Delivery Date (the “Dispute Period”) to review the Closing Statement. If the Seller Representative has any objections to the Closing Statement, the Seller Representative shall deliver to Purchaser a statement setting forth its objections thereto (a “Dispute Notice”), which shall identify in reasonable detail those items and amounts set forth on the Closing Statement to which the Seller Representative objects and the Seller Representative’s basis reasons for such objection its dispute (the “Disputed Items”). If a Dispute Notice is not delivered Seller shall be deemed to Purchaser during the Dispute Period, have agreed with all items in the Closing Statement other than as prepared by Purchaser shall be deemed accepted set forth in the Dispute Note and agreed to by such items that are not set forth in the Seller Representative and shall be final, binding and non-appealable by the parties hereto. If the Seller Representative delivers a Dispute Notice to Purchaser, Purchaser and the Seller Representative shall attempt to resolve the Disputed Items within thirty (30) days following the date of delivery of the Dispute Notice. If Purchaser and Seller Representative reach an agreement as to the final determination of the Closing Statement and the resulting Aggregate Purchase Price, the Aggregate Purchase Price so agreed to shall be deemed final and binding upon the parties and enforceable by a court of competent jurisdiction. If the Seller delivers a Dispute Notice to Purchaser, Purchaser and the Seller Representative shall attempt to resolve the Disputed Items within thirty (30) days after delivery of the Dispute Notice. If Purchaser and the Seller are unable to resolve any Disputed Item Items within such thirty (30) day period, Purchaser and the Seller Representative shall mutually engage and submit such Disputed Item Items to, and the same shall be finally resolved in accordance with the provisions of this Agreement by, XxxxDeloitte Touche Tohmatsu Limited, Xxxxxxx & Company, P.C. or, if such firm is not available or unwilling to accept such engagement, such other impartial nationally recognized independent certified public accounting firm mutually acceptable to Purchaser and the Seller Representative (the “Independent Accountant”). The proposed Aggregate Purchase Price reflected in Purchaser’s submission to the Independent Accountant may not be lower than the amount reflected by Purchaser in its Closing Statement delivered pursuant to clause (a) above, and the proposed Aggregate Purchase Price reflected in Seller Representative’s submission to the Independent Accountant may not be higher than the amount reflected in its initial Dispute Notice delivered pursuant to this clause (c). Prior to such engagement, the Independent Accountant shall confirm to Purchaser and the Seller Representative as to its independence with respect to such engagement. Purchaser and the Seller Representative shall use their respective commercially reasonable efforts to promptly engage the Independent Accountant and to cause the Independent Accountant to resolve any the Disputed Items as soon as practicable, but in any event within thirty (30) days (or such other period of time as Purchaser and the Seller Representative shall agree) after engagement by Purchaser and the Seller RepresentativeSeller, and to set forth in a written statement its final determination of the Closing Statement and the resulting Aggregate Purchase Price based upon its resolution of such Disputed Items and the items and amounts with respect to the Closing Statement that were not Disputed Items. The Independent Accountant shall review the written submissions of Purchaser and the Seller Representative and base its determination solely on such submissions, and not an independent review. In resolving any Disputed Item, the Independent Accountant may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the least value for such item claimed by either party party, in its submissions to each case, as set forth in the Independent Accountant. The parties hereto agree that all adjustments shall be made without regard to materialityClosing Statement or the Dispute Notice (if any). The decision of the Independent Accountant shall be deemed final and binding upon the parties and enforceable by a court of competent jurisdiction. Each party shall bear its own costs and expenses in connection with the resolution of such Disputed Items by the Independent Accountant. The fees and expenses of the Independent Accountant shall be allocated between Purchaser and Sellers the Seller so that the amount of fees and expenses paid by Sellers the Seller (with the remainder of such amount being paid by Purchaser) shall be equal to the product of (x) and (y), where (x) is the aggregate amount of such fees and expenses, and where (y) is a fraction, the numerator of which is an amount equal to the amount of the Aggregate Purchase Price as submitted in dispute that is ultimately unsuccessfully disputed by the Seller Representative to the Independent Accountant minus the amount of the Aggregate Purchase Price (as so determined by the Independent Accountant Accountant) and the denominator of which is equal the total value in dispute. If a Dispute Notice is not delivered to Purchaser during the amount of Dispute Period, the Aggregate Purchase Price Closing Statement as submitted prepared by Purchaser shall be deemed accepted and agreed to by the Seller Representative to and shall be final, binding and non-appealable by the Independent Accountant minus the amount of the Aggregate Purchase Price as submitted by Purchaser to the Independent Accountantparties hereto. (d) If the Aggregate Purchase Price, based upon the final determination pursuant to Section 1.05(aSections 2.4(b) and Section 1.05(c2.4(c) (the “Final Aggregate Purchase Price”), exceeds the Estimated Aggregate Purchase Price (such excess, the “Upward Adjustment Amount”), then promptly (but in any event within five (5) Business Days after the determination of the Final Aggregate Purchase Price), Purchaser shall ): (i) cause the Company to Purchaser shall pay each Optionholder, in respect of his or her Options, such Optionholder’s Percentage Share of the Upward Adjustment Amount less applicable withholding and to the Seller (ii) pay for the remaining balance benefit of the Upward Adjustment Amount Seller and the Rollover Holders) by wire transfer of immediately available funds pursuant to instructions furnished by the Seller Representative and (for the benefit of the Common Stockholders in respect of their Common Shares), and ii) Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay from the balance of the Working Capital Escrow Amount (plus all earnings thereon) in to the Seller from the Escrow Account (A) pursuant to the Company 5.0208% of the Working Capital Escrow Amount (plus all earnings thereon) and (B) to the Seller Representative (to be paid to each Common Stockholder instructions furnished by the Seller Representative in accordance with each such Common Stockholder’s Percentage Share in respect of such Common Stockholder’s Common Shares) the balance of the Working Capital Escrow Amount (plus all earnings thereon)Seller. Promptly following the Company’s Following receipt of the amount paid Upward Adjustment Amount, the Seller shall deliver to the Company pursuant Rollover Holders their respective Rollover Pro Rata Amount of the same at the same time that it otherwise makes a distribution of the Upward Adjustment Amount to clause (ii)(A) of this Section 1.05(d) (and in no event later than the next regular payroll period), Purchaser shall cause the Company to issue a check or to make a wire transfer to each Optionholder, in respect of such Optionholder’s Options, such Optionholder’s Percentage Share of such amount, less applicable withholdingits members. (e) If the Estimated Aggregate Purchase Price exceeds the Final Aggregate Purchase Price (such excess, the “Downward Adjustment Amount”), then promptly (but in any event within five (5) Business Days after the determination of the Final Aggregate Purchase Price), Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay to Purchaser the Downward Adjustment Amount from the Escrow Account, with the Downward Adjustment Amount to be deducted from the Working Capital Escrow Amount (including any earnings thereon). If the Downward Adjustment Amount exceeds the Working Capital Escrow Amount (plus all earnings thereon), Purchaser shall be entitled (but not required) in its sole discretion to recover the amount of such excess from the Indemnity Escrow Amount, and Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay to Purchaser the amount of any such excess from the Indemnity Escrow Amount; provided, however, that in lieu of recovering such amounts from the Indemnity Escrow Amount, Purchaser may require that each Common Stockholder and each Optionholder directly pays its Percentage Share of such amounts to Purchaser. If the Downward Adjustment Amount does not exceed the Working Capital Escrow Amount, Purchaser and the Seller shall promptly (but in any event within five (5) Business Days after the determination of the Final Purchase Price) jointly instruct the Escrow Agent to pay the balance of the Escrow Amount (plus all earning earnings thereon)) to the Seller (for the benefit of Seller and the Rollover Holders) from the Escrow Account pursuant to instructions furnished by the Seller. Following receipt of such amounts, the Seller shall deliver to the Rollover Holders their respective Rollover Pro Rata Amount of such amounts at the same time that it otherwise makes a distribution of the Upward Adjustment Amount to its members. If the Downward Adjustment Amount exceeds the Escrow Amount, the Seller shall pay such excess to Purchaser by wire transfer of immediately available funds pursuant to instructions furnished by Purchaser within five (5) Business Days after the determination of the Final Purchase Price. (f) If the Estimated Aggregate Purchase Price equals the Final Purchase Price, then promptly (but in any event within five (5) Business Days after the determination of the Final Purchase Price) Purchaser and the Seller Representative (for the benefit of the Seller and the Rollover Holders) shall jointly instruct the Escrow Agent to pay from the Escrow Account (i) to the Company 5.0208% of the amount by which the Working Capital Escrow Amount (plus all earnings thereon) exceeds the Downward Adjustment Amount (such excess, the “Excess Adjustment Release Amount”) and (ii) to the Seller Representative (from the Escrow Account pursuant to be paid to each Common Stockholder instructions furnished by the Seller. Following receipt of such amounts, the Seller Representativeshall deliver to the Rollover Holders their respective Rollover Pro Rata Amount of such amounts at the same time that it otherwise makes a distribution of such amounts to its members. (g) Notwithstanding anything to the contrary herein, if Purchaser fails to timely deliver the Closing Statement in accordance with each such Common Stockholder’s Percentage Share in respect of such Common Stockholder’s Common Shares) the remaining balance of the Excess Adjustment Release Amount. Promptly following the Company’s receipt of the amount paid to the Company pursuant to clause (i) of this Section 1.05(e) (and in no event later than the next regular payroll period2.4(a), Purchaser shall cause then the Company to issue a check to each Optionholder, in respect of such Optionholder’s Options, such Optionholder’s Percentage Share of such amount, less applicable withholding. Any disbursements of the Working Capital Escrow Amount to the Sellers’ Final Purchase Price shall be net of deemed to equal the Sellers’ share of the fees and expenses of the Independent Accountant, if any, which amount shall be paid from the Working Capital Escrow to the Escrow Agent. (f) Any adjustment pursuant to Sections 1.05(d) or Section 1.05(e) above shall, to the extent permitted by Law, be deemed for Tax purposes to be an adjustment to the Estimated Aggregate Purchase Price; provided, however, that if within ten (10) days following the failure to timely deliver the Closing Statement in accordance with Section 2.4(a), the Seller notifies Purchaser in writing of such failure and Purchaser does not cure such failure within fifteen (15) days thereafter, the Seller shall be entitled to retain (at the expense of Purchaser) the Independent Accountant to provide an audit or other review of the Company Group’s books, review the calculation of the Estimated Aggregate Purchase Price and make any adjustments necessary thereto, consistent with the provisions of Section 2.4, in which case the Final Purchase Price shall be deemed to be the Estimated Aggregate Purchase Price as adjusted by the Independent Accountant pursuant to this Section 2.4(g) (the determination of such Independent Accountant being conclusive and binding on the parties hereto).

Aggregate Purchase Price Adjustments. (a) As promptly as possible, but in any event within seventy sixty (7060) days after the Closing Date, Purchaser shall cause to be prepared and delivered to the Seller Representative a statement (the “Closing Statement,” and the date on which the Closing Statement is delivered to the Seller Representative, the “Delivery Date”) setting forth Purchaser’s calculation of the amount of the Company Cash Equivalents, Company Indebtedness, Transaction Expenses (including any of those which were not paid as of the Closing pursuant to Section 1.04(c))Expenses, Closing Working Capital, the Aggregate Purchase Price and the adjustment necessary to reconcile the Estimated Aggregate Purchase Price to the Aggregate Purchase Price. If Purchaser fails to timely deliver the Closing Statement in accordance with the immediately preceding sentence within such sixty (60) day period, then, at the Seller Representative’s sole option, either (i) the Estimated Closing Statement delivered by the Company pursuant to Section 1.3 shall be deemed to be the Closing Statement and the Seller Representative shall have the rights set forth in, and shall be able to review and dispute the Closing Statement in accordance with Section 1.4(c), or (ii) the Final Purchase Price shall be deemed to be equal to the Estimated Aggregate Purchase Price and the Escrow Amount (plus all earnings thereon) shall be released to the Sellers in accordance with Section 1.4(f). The Closing Statement shall be prepared in a manner consistent with the Agreed Accounting Principles and in accordance with the provisions of definitions set forth in this Agreement. In preparing the Closing Statement: (xA) any and all effects on the assets or liabilities of the Company Group of any distributions, financing or refinancing arrangements entered into by Purchaser Purchaser, Blocker or by the Company Group on or after the Closing Date or any other transaction entered into by Purchaser Purchaser, Blocker or by the Company Group on or after the Closing Date in connection with the consummation of the transactions contemplated by this Agreement shall be entirely disregarded; (yB) it shall be assumed that Blocker, the Company Group and its lines of business their respective businesses shall be continued as a going concern; and (zC) there shall not be taken into account any of the plans, transactions or changes that Purchaser intends to initiate or make or cause to be initiated or made on or after the Closing Date with respect to Blocker, the Company Group or its their respective businesses or assets, or any facts or circumstances that are unique or particular to Purchaser or any assets or liabilities of Purchaser, or any obligation for the payment of the Aggregate Purchase Price hereunder. (b) During the Dispute Period (as defined below) and thereafter until resolution of the Final Aggregate Purchase Price, Purchaser shall, and shall cause the Company Group to, provide the Seller Representative (and its representatives) with reasonable access during normal business hours to the books, records, supporting data, facilities and personnel of the Company Group for purposes of the Seller Representative’s review of the Closing Statement and reasonably cooperate with the Seller Representative (and its representatives) in connection with such review. (c) The Seller Representative shall have forty-five (45) days following the Delivery Date (the “Dispute Period”) to review the Closing Statement. If the Seller Representative has any objections to the Closing Statement, the Seller Representative shall deliver to Purchaser a statement setting forth its objections thereto (a “Dispute Notice”), which shall identify in reasonable detail those items and amounts set forth on the Closing Statement to which the Seller Representative objects and the Seller Representative’s basis for such objection (the “Disputed Items”). If a Dispute Notice is not delivered to Purchaser during the Dispute Period, the Closing Statement as prepared by Purchaser shall be deemed accepted and agreed to by the Seller Representative and shall be final, binding and non-appealable by the parties hereto. If the Seller Representative delivers a Dispute Notice to Purchaser, Purchaser and the Seller Representative shall attempt to resolve in good faith the Disputed Items within thirty (30) days following the date of after delivery of the Dispute Notice. If Purchaser and Seller Representative reach an agreement as to the final determination of the Closing Statement and the resulting Aggregate Purchase Price, the Aggregate Purchase Price so agreed to shall be deemed final and binding upon the parties and enforceable by a court of competent jurisdiction. If Purchaser Xxxxxxxxx and the Seller Representative are unable to resolve any Disputed Item Items within such thirty (30) day period, Purchaser and the Seller Representative shall mutually engage and submit such Disputed Item Items to, and the same shall be finally resolved in accordance with the provisions of this Agreement by, Xxxx, Xxxxxxx & Company, P.C. or, if such firm is not available or unwilling to accept such engagement, such other impartial nationally recognized independent certified public accounting firm mutually acceptable to Purchaser and by the Seller Representative (the “Independent Accountant”). The proposed Aggregate Purchase Price reflected in Purchaser’s submission to the Independent Accountant may , who shall act as an expert and not be lower than the amount reflected by Purchaser in its Closing Statement delivered pursuant to clause (a) above, and the proposed Aggregate Purchase Price reflected in Seller Representative’s submission to the Independent Accountant may not be higher than the amount reflected in its initial Dispute Notice delivered pursuant to this clause (c). Prior to such engagement, the Independent Accountant shall confirm to Purchaser and the Seller Representative as to its independence with respect to such engagementan arbitrator. Purchaser and the Seller Representative shall use their respective commercially reasonable efforts to promptly engage the Independent Accountant and to cause the Independent Accountant to resolve any the Disputed Items as soon as practicable, but in any event within thirty (30) days (or such other period of time as Purchaser and the Seller Representative shall agree) after engagement by Purchaser Xxxxxxxxx and the Seller Representative, and to set forth in a written statement its final determination of the Closing Statement and the resulting Aggregate Purchase Price based upon its resolution of such Disputed Items and the items and amounts with respect to the Closing Statement that were not Disputed Items. The Independent Accountant shall review the written submissions of Purchaser and the Seller Representative and base its determination solely on such submissions. In resolving any Disputed Item, the Independent Accountant may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the least value for such item claimed by either party in its submissions to party. Absent manifest mathematical error, the Independent Accountant. The parties hereto agree that all adjustments shall be made without regard to materiality. The decision of the Independent Accountant shall be deemed final and binding upon the parties and enforceable by a court of competent jurisdiction. Each party shall bear its own costs and expenses in connection with the resolution of such Disputed Items by the Independent Accountant. The fees and expenses of the Independent Accountant shall be allocated between Purchaser and the Sellers so that the amount of fees and expenses paid by the Sellers (with the remainder of such amount being paid by Purchaser) shall be equal to the product of (x) and (y), where (x) is the aggregate amount of such fees and expenses, and where (y) is a fraction, the numerator of which is an amount equal to the amount of the Aggregate Purchase Price as submitted in dispute that is ultimately unsuccessfully disputed by the Seller Representative to the Independent Accountant minus the amount of the Aggregate Purchase Price (as so determined by the Independent Accountant Accountant) and the denominator of which is equal to the amount of the Aggregate Purchase Price as submitted by the Seller Representative to the Independent Accountant minus the amount of the Aggregate Purchase Price as submitted by Purchaser to the Independent Accountanttotal value in dispute. (d) If the Aggregate Purchase Price, based upon the final determination pursuant to Section 1.05(aSections 1.4(a) and Section 1.05(c1.4(c) (the “Final Aggregate Purchase Price”), exceeds the Estimated Aggregate Purchase Price (such excess, the “Upward Adjustment Amount”), then promptly (but in any event within five (5) Business Days after the determination of the Final Aggregate Purchase Price), Purchaser shall (i) cause the Company to Purchaser shall pay each Optionholder, in respect of his or her Options, such Optionholder’s Percentage Share of the Upward Adjustment Amount less applicable withholding and (ii) pay the remaining balance of the Upward Adjustment Amount pursuant to instructions furnished by the Seller Representative (for the benefit of the Common Stockholders Sellers in respect of their Common Shareseach Seller’s Percentage Share), and (ii) Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay from the balance of the Working Capital Escrow Amount (plus all earnings thereon) in from the Escrow Account (A) pursuant to the Company 5.0208% of the Working Capital Escrow Amount (plus all earnings thereon) and (B) to instructions furnished by the Seller Representative (to be paid to each Common Stockholder by for the Seller Representative in accordance with each such Common Stockholder’s Percentage Share benefit of the Sellers in respect of such Common Stockholdereach Seller’s Common Shares) the balance of the Working Capital Escrow Amount (plus all earnings thereonPercentage Share). Promptly following the Company’s receipt of the amount paid to the Company pursuant to clause (ii)(A) For purposes of this Section 1.05(dAgreement, a Seller’s “Percentage Share” means the percentage set forth on Schedule 1.4(d) (and in no event later than the next regular payroll period), Purchaser shall cause the Company to issue a check or to make a wire transfer to each Optionholder, in respect of opposite such OptionholderSeller’s Options, such Optionholder’s Percentage Share of such amount, less applicable withholdingname. (e) If the Estimated Aggregate Purchase Price exceeds the Final Aggregate Purchase Price (such excess, the “Downward Adjustment Amount”), then promptly (but in any event within five (5) Business Days after the determination of the Final Aggregate Purchase Price), Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay to Purchaser the Downward Adjustment Amount from the Escrow Account, with the Downward Adjustment Amount to be deducted from the Working Capital Escrow Amount (including any earnings thereon). If the Downward Adjustment Amount exceeds the Working Capital Escrow Amount (plus all earnings thereon), Purchaser shall be entitled (but not required) in its sole discretion to recover the amount of such excess from the Indemnity Escrow Amount, and Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay to Purchaser the amount of any such excess from the Indemnity Escrow Amount; provided, however, that in lieu of recovering such amounts from the Indemnity Escrow Amount, Purchaser may require that each Common Stockholder and each Optionholder directly pays its Percentage Share of such amounts to Purchaser. If the Downward Adjustment Amount does not exceed the Working Capital Escrow Amount (plus all earning thereon), Purchaser and the Seller Representative shall jointly instruct the Escrow Agent to pay from the Escrow Account (i) to the Company 5.0208% of the amount by which the Working Capital Escrow Amount (plus all earnings thereon) exceeds the Downward Adjustment Amount (such excess, the “Excess Adjustment Release Amount”) and (ii) to the Seller Representative (to be paid to each Common Stockholder by the Seller Representative, in accordance with each such Common Stockholder’s Percentage Share in respect of such Common Stockholder’s Common Shares) the remaining balance of the Excess Adjustment Release Amount. Promptly following the Company’s receipt of the amount paid to the Company pursuant to clause (i) of this Section 1.05(e) (and in no event later than the next regular payroll period), Purchaser shall cause the Company to issue a check to each Optionholder, in respect of such Optionholder’s Options, such Optionholder’s Percentage Share of such amount, less applicable withholding. Any disbursements of the Working Capital Escrow Amount to the Sellers’ shall be net of the Sellers’ share of the fees and expenses of the Independent Accountant, if any, which amount shall be paid from the Working Capital Escrow to the Escrow Agent. (f) Any adjustment pursuant to Sections 1.05(d) or Section 1.05(e) above shall, to the extent permitted by Law, be deemed for Tax purposes to be an adjustment to the Aggregate Purchase Price.