Common use of Closing and Post-Closing Adjustments Clause in Contracts

Closing and Post-Closing Adjustments. (a) Not later than the fifth Business Day prior to the Closing Date, Seller and Parent shall deliver to Purchaser a statement (the “Estimated Closing Statement”), consisting of (i) an estimated balance sheet of MONY as of the Closing Date after giving effect to the Pre-Closing Transactions and pro forma effect to the sale of Investment Assets that will be effected at the Closing pursuant to Section 5.16(b), (ii) an estimated calculation in reasonable detail of Adjusted Statutory Book Value as of the Closing Date (the “Estimated Adjusted Statutory Book Value”), (iii) an estimated calculation in reasonable detail of the Tax Asset Value as of the Closing Date (the “Estimated Tax Asset Value”), (iv) an estimated calculation of the Initial Reinsurance Premium and the Adjusted Ceding Commission (each as defined in the MLOA Reinsurance Agreement) and (v) a list of the Transferred Assets (as defined in the MLOA Reinsurance Agreement) to be transferred by MLOA to Purchaser or, at Purchaser’s discretion, to Purchaser by transfer to the Trust Account (as defined in the MLOA Reinsurance Agreement), on the Closing Date pursuant to the MLOA Reinsurance Agreement, including the Company Statutory Book Value (including investment income due and accrued, but excluding the amount of any principal and interest (to the extent included in such valuation) paid or to be paid to MLOA (and not Purchaser) following the date of determination as holder of record of such asset on or prior to the Closing) as of the last day of the second month immediately preceding the month in which the Closing shall occur or, in the case of the Closing occurring on December 31, 2013, as of November 30, 2013, or in any case as of such other date mutually agreed by the parties. The Estimated Closing Statement shall be estimated in good faith and based upon the Books and Records after giving effect to the Pre-Closing Transactions and pro forma effect to the sale of Investment Assets that will be effected at the Closing pursuant to Section 5.16(b). The Estimated Closing Statement shall be in the form of Schedule 2.5(a)(i) hereto and prepared and calculated in accordance with the methodologies, procedures, judgments, assumptions and estimates described on Schedule 2.5(a)(ii) hereto (the “Closing Statement Methodologies”). For illustrative purposes only (except with respect to the representation set forth in the last sentence of Section 3.16(a)(i)), attached as Schedule 2.5(a)(iii) hereto is an Estimated Closing Statement as of and for the period ended on December 31, 2012, calculated using the Closing Statement Methodologies (the “Pro Forma Closing Statement”). (b) Purchaser shall, on or before the date that is 90 days after the Closing Date, deliver to Seller a statement (the “Closing Statement”) consisting of (i) a balance sheet of MONY after giving effect to the Pre-Closing Transactions and pro forma effect to the sale of Investment Assets that will be effected at the Closing pursuant to Section 5.16(b), and (ii) calculations in reasonable detail of each of the Adjusted Statutory Book Value and the Tax Asset Value, in each case as of the Closing Date, in the same format as the Estimated Closing Statement, and prepared in accordance with the Closing Statement Methodologies. (c) The Closing Statement shall become final, binding and conclusive upon Seller, Parent and Purchaser on the sixtieth day following Seller’s receipt of the Closing Statement, unless prior to such sixtieth day Seller delivers to Purchaser a written notice (a “Dispute Notice”) stating that Seller believes the Closing Statement contains mathematical errors or was not prepared in accordance with the Closing Statement Methodologies and specifying in reasonable detail each item that Seller disputes (each, a “Disputed Item”), the amount in dispute for each Disputed Item and the reasons supporting Seller’s positions. (d) If Seller delivers a Dispute Notice, then Seller and Purchaser shall seek in good faith to resolve the Disputed Items during the thirty-day period beginning on the date Purchaser receives the Dispute Notice (the “Resolution Period”). If Seller and Purchaser reach agreement with respect to any Disputed Items, Purchaser shall revise the Closing Statement to reflect such agreement. (e) If Purchaser and Seller are unable to resolve all of the Disputed Items during the Resolution Period, then Purchaser and Seller shall jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to Ernst & Young LLP or such other independent accounting firm of nationally recognized standing as may be mutually agreed by Purchaser and Seller (the “Transaction Consultant”). Purchaser and Seller shall, promptly (and in any event within 10 Business Days) after the Transaction Consultant’s engagement, each submit to the Transaction Consultant their respective computations of the Unresolved Items still in dispute and information, arguments and support for their respective positions, and shall concurrently deliver a copy of such materials to the other party. Each party shall then be given an opportunity to supplement the information, arguments and support included in its initial submission with one additional submission to respond to any arguments or positions taken by the other party in such other party’s initial submission, which supplemental information shall be submitted to the Transaction Consultant (with a copy thereof to the other party) within 5 Business Days after the first date on which both parties have submitted their respective initial submissions to the Transaction Consultant. The Transaction Consultant shall thereafter be permitted to request additional or clarifying information from the parties, and each of the parties shall use its reasonable best efforts to furnish to the Transaction Consultant such work papers and other documents and information pertaining to the Unresolved Items as the Transaction Consultant may reasonably request. The Transaction Consultant shall act as an arbitrator to determine, based solely on presentations by Purchaser and Seller and not by independent review, only the Unresolved Items still in dispute. Purchaser and Seller shall use their reasonable best efforts to cause the Transaction Consultant to issue its written determination regarding the Unresolved Items within thirty days after such items are submitted for review. The Transaction Consultant shall make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.5 and the Closing Statement Methodologies, and in no event shall the Transaction Consultant’s determination of the Unresolved Items be for an amount that is outside the range of Purchaser’s and Seller’s disagreement. The determination of the Transaction Consultant shall be final, binding and conclusive upon Purchaser, Seller and Parent absent manifest error, and Purchaser shall revise the Closing Statement to reflect such determination upon receipt thereof. The fees, expenses and costs of the Transaction Consultant shall be borne equally by Purchaser and Seller. (f) Each party shall use its reasonable best efforts to provide promptly to the other party all information and reasonable access to employees as such other parties shall reasonably request in connection with review of the Estimated Closing Statement, the Closing Statement or the Dispute Notice, as the case may be, including all work papers of the accountants who audited, compiled or reviewed such statements or notices (subject to the requesting party and its representatives entering into reasonable customary undertakings required by the other party’s accountants in connection therewith), and shall otherwise cooperate in good faith with such other parties to arrive at a final determination of the Closing Statement. (g) In the event that the Closing Date Value as reflected on the Closing Statement as finally determined pursuant to this Section 2.5 is greater than Estimated Closing Date Value, Purchaser shall, within 2 Business Days of the determination thereof, transfer to Seller the amount of such excess, together with interest thereon from and including the Closing Date to but not including the date of such transfer, computed at the Interest Rate, by wire transfer of immediately available funds to an account or accounts designated by Seller. (h) In the event that Estimated Closing Date Value is greater than Closing Date Value as reflected on the Closing Statement as finally determined pursuant to this Section 2.5, Seller shall, within 2 Business Days of the determination thereof, transfer to Purchaser the amount of such excess, together with interest thereon from and including the Closing Date to but not including the date of such transfer, computed at the Interest Rate, by wire transfer of immediately available funds to an account designated by Purchaser.

Closing and Post-Closing Adjustments. (a) Not later than the fifth At least two (2) Business Day Days prior to the Closing Date, Seller and Parent the Company shall deliver to Purchaser a statement (the “Estimated Closing Statement”), consisting of Buyer (i) an estimated unaudited consolidated balance sheet of MONY the Company and its Subsidiaries as of the Closing Date after giving effect to the Pre-Closing Transactions and pro forma effect to the sale close of Investment Assets that will be effected at the Closing pursuant to Section 5.16(b), (ii) an estimated calculation in reasonable detail of Adjusted Statutory Book Value as of business on the Closing Date (the “Estimated Adjusted Statutory Book ValueClosing Balance Sheet”) prepared in accordance with GAAP and on a basis consistent with the accounting practices and policies used in the preparation of the Company’s Financial Statements, together with a certificate based on such Estimated Closing Balance Sheet setting forth the Company’s calculation of its Stockholders’ Equity as of such date (the “Estimated Closing Date Stockholders’ Equity”), (ii) to the extent that the Company’s equity interests in Trade Settlement, Inc. and The Clearing Corporation have not been sold by the Company prior to the Closing, independent appraisals or other documentation sufficient to establish to the reasonable satisfaction of Buyer the sum of the fair market value of such equity interests as of close of business on March 31, 2008, and (iii) an estimated a certificate setting forth the Company’s calculation in reasonable detail of the Tax Asset Value amount of the accounts receivable of the Company and its Subsidiaries that are more than one hundred and twenty (120) days past due and uncollected as of the close of business on March 31, 2008. At the Closing, the Net Merger Consideration shall be calculated to give effect to any increase or decrease in the Company’s Stockholders’ Equity from the close of business on March 31, 2008 through the Closing as provided in Section 2.1(e)(xv) and the related definitions. (b) As promptly as practicable, but no later than one hundred and twenty (120) days after the Closing Date, Buyer will cause to be prepared and delivered to the Stockholders’ Representative a proposed final consolidated balance sheet of the Company and its Subsidiaries as of the close of business on March 31, 2008 (the “Reference Date Balance Sheet”) and on the Closing Date (the “Estimated Tax Asset ValueClosing Balance Sheet”), (iv) an estimated and a certificate based on such Reference Date Balance Sheet and Closing Balance Sheet setting forth Buyer’s calculation of the Initial Reinsurance Premium and Company’s Stockholders’ Equity as of the Adjusted Ceding Commission close of business on March 31, 2008 (each as defined in the MLOA Reinsurance Agreement“Reference Date Stockholders’ Equity”) and (v) a list of the Transferred Assets (as defined in the MLOA Reinsurance Agreement) to be transferred by MLOA to Purchaser or, at Purchaser’s discretion, to Purchaser by transfer to the Trust Account (as defined in the MLOA Reinsurance Agreement), on the Closing Date pursuant to the MLOA Reinsurance Agreement, including the Company Statutory Book Value (including investment income due and accrued, but excluding the amount of any principal and interest (to the extent included in such valuation) paid or to be paid to MLOA (and not Purchaser) following the date of determination as holder of record of such asset on or prior to the Closing) as of the last day of the second month immediately preceding the month in which the Closing shall occur or, in the case of the Closing occurring on December 31, 2013, as of November 30, 2013, or in any case as of such other date mutually agreed by the parties. The Estimated Closing Statement shall be estimated in good faith and based upon the Books and Records after giving effect to the Pre-Closing Transactions and pro forma effect to the sale of Investment Assets that will be effected at the Closing pursuant to Section 5.16(b). The Estimated Closing Statement shall be in the form of Schedule 2.5(a)(i) hereto and prepared and calculated in accordance with the methodologies, procedures, judgments, assumptions and estimates described on Schedule 2.5(a)(ii) hereto (the “Closing Statement MethodologiesDate Stockholders’ Equity,” and together with the Reference Date Balance Sheet, the Closing Balance Sheet and the Reference Date Stockholders’ Equity, the “True-up Statement”). For illustrative purposes only (except with respect to Each of the representation set forth in the last sentence of Section 3.16(a)(i)), attached as Schedule 2.5(a)(iii) hereto is an Estimated Closing Statement as of Reference Date Balance Sheet and for the period ended on December 31, 2012, calculated using the Closing Statement Methodologies (the “Pro Forma Closing Statement”). (b) Purchaser shall, on or before the date that is 90 days after the Closing Date, deliver to Seller a statement (the “Closing Statement”) consisting of Balance Sheet (i) shall be prepared in accordance with GAAP applied on a balance sheet basis that is consistent with the preparation of MONY after giving effect to the Pre-Closing Transactions Company’s Financial Statements, including, without limitation, the use of the same accounting principles, practices, procedures, policies and pro forma effect to methods, with consistent classifications, judgments, inclusions, exclusions and valuation and estimation methodologies, that were employed in the sale preparation of Investment Assets that will be effected at the Closing pursuant to Section 5.16(b)Estimated Reference Date Balance Sheet, and (ii) calculations shall include the same line items reflected in reasonable detail of each the Estimated Reference Date Balance Sheet. The Stockholders’ Representative shall have thirty (30) days following its receipt of the Adjusted Statutory Book Value True-up Statement and all supporting documentation requested by it (the “Review Period”) to review the same. On or before the expiration of the Review Period, the Stockholders’ Representative shall deliver to Buyer a written statement accepting or objecting to the True-up Statement. In the event that the Stockholders’ Representative objects to the True-up Statement, such objection shall include an itemization of the Stockholders’ Representative’s disputed items and the Tax Asset Valuereasons therefor. If the Stockholders’ Representative does not deliver an objection to Buyer within the Review Period, in each case as of the Closing Date, in Stockholders’ Representative shall be deemed to have accepted the same format as the Estimated Closing True-up Statement, and prepared in accordance with the Closing Statement Methodologiescalculations set forth therein shall be final and binding for purposes of making the adjustments to merger consideration, if any, as contemplated below. (c) The Closing Statement shall become final, binding and conclusive upon Seller, Parent and Purchaser on the sixtieth day following Seller’s receipt of the Closing Statement, unless prior to such sixtieth day Seller delivers to Purchaser a written notice (a “Dispute Notice”) stating that Seller believes the Closing Statement contains mathematical errors or was not prepared in accordance with the Closing Statement Methodologies and specifying in reasonable detail each item that Seller disputes (each, a “Disputed Item”), the amount in dispute for each Disputed Item and the reasons supporting Seller’s positions. (d) If Seller delivers a Dispute Notice, then Seller and Purchaser shall seek in good faith to resolve the Disputed Items during the thirty-day period beginning on the date Purchaser receives the Dispute Notice (the “Resolution Period”). If Seller and Purchaser reach agreement with respect to any Disputed Items, Purchaser shall revise the Closing Statement to reflect such agreement. (e) If Purchaser and Seller are unable to resolve all of the Disputed Items during the Resolution Period, then Purchaser and Seller shall jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to Ernst & Young LLP or such other independent accounting firm of nationally recognized standing as may be mutually agreed by Purchaser and Seller (the “Transaction Consultant”). Purchaser and Seller shall, promptly (and in any event within 10 Business Days) after the Transaction Consultant’s engagement, each submit to the Transaction Consultant their respective computations of the Unresolved Items still in dispute and information, arguments and support for their respective positions, and shall concurrently deliver a copy of such materials to the other party. Each party shall then be given an opportunity to supplement the information, arguments and support included in its initial submission with one additional submission to respond to any arguments or positions taken by the other party in such other party’s initial submission, which supplemental information shall be submitted to the Transaction Consultant (with a copy thereof to the other party) within 5 Business Days after the first date on which both parties have submitted their respective initial submissions to the Transaction Consultant. The Transaction Consultant shall thereafter be permitted to request additional or clarifying information from the parties, and each of the parties shall use its reasonable best efforts to furnish to the Transaction Consultant such work papers and other documents and information pertaining to the Unresolved Items as the Transaction Consultant may reasonably request. The Transaction Consultant shall act as an arbitrator to determine, based solely on presentations by Purchaser and Seller and not by independent review, only the Unresolved Items still in dispute. Purchaser and Seller shall use their reasonable best efforts to cause the Transaction Consultant to issue its written determination regarding the Unresolved Items within thirty days after such items are submitted for review. The Transaction Consultant shall make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.5 and the Closing Statement Methodologies, and in no event shall the Transaction Consultant’s determination of the Unresolved Items be for an amount that is outside the range of Purchaser’s and Seller’s disagreement. The determination of the Transaction Consultant shall be final, binding and conclusive upon Purchaser, Seller and Parent absent manifest error, and Purchaser shall revise the Closing Statement to reflect such determination upon receipt thereof. The fees, expenses and costs of the Transaction Consultant shall be borne equally by Purchaser and Seller. (f) Each party shall use its reasonable best efforts to provide promptly to the other party all information and reasonable access to employees as such other parties shall reasonably request in connection with review of the Estimated Closing Statement, the Closing Statement or the Dispute Notice, as the case may be, including all work papers of the accountants who audited, compiled or reviewed such statements or notices (subject to the requesting party and its representatives entering into reasonable customary undertakings required by the other party’s accountants in connection therewith), and shall otherwise cooperate in good faith with such other parties to arrive at a final determination of the Closing Statement. (g) In the event that the Closing Date Value Stockholders’ Representative objects to the True-up Statement within the Review Period, Buyer and the Stockholders’ Representative shall promptly meet and in good faith attempt to resolve such objections. Any such objections which cannot be resolved between Buyer and the Stockholders’ Representative within thirty (30) days following Buyer’s receipt of the Stockholders’ Representative’s statement of objections shall be resolved in accordance with this Section 2.5(c). Should the Stockholders’ Representative and Buyer not be able to resolve such objections as reflected on may be raised with respect to the True-up Statement within the thirty (30) day period described above, either party may submit the matter to a firm of independent certified public accountants as to which the Company and Buyer shall mutually agree prior to the Closing Statement Date, (the “Accounting Referee”) for review and resolution, with instructions to complete the same as finally determined pursuant promptly as practicable, but in any event within thirty (30) days of its engagement, and to make any calculations strictly in accordance with the accounting methodologies and principles provided for in this Section 2.5 is greater than Estimated Closing Date Value, Purchaser shall, within 2 Business Days of the determination thereof, transfer to Seller the amount of such excess, together with interest thereon from and including Agreement. If following the Closing Date the agreed Accounting Referee is unwilling or unable to but act in this role, the Stockholders’ Representative and Buyer shall cooperate and work together in good faith to mutually agree another firm of certified public accountants or another reputable and experienced firm or person to act in this role. Based solely on such accounting methodologies and principles, and the presentations provided to the Accounting Referee by each of Buyer and the Stockholders’ Representative, the Accounting Referee shall prepare and deliver to Buyer and the Stockholders’ Representative a statement setting forth its own calculations of the Company’s Reference Date Cash Amount, the Reference Date Stockholders’ Equity and the Closing Date Stockholders’ Equity, which calculations, absent manifest error, shall be binding and conclusive on the parties and not including subject to appeal. The Accounting Referee shall be instructed that in making its determination, it shall make revised calculations only with respect to those items or amounts which are in dispute between Buyer and the date Stockholders’ Representative and, further, it must select a position with respect to any such disputed items or amounts that is equal to the final position of such transferBuyer or the final position of the Stockholders’ Representative, computed at or in between the Interest Ratefinal position of Buyer and the final position of the Stockholders’ Representative. No appeal of the Accounting Referee’s determination shall be permitted, except in the event of manifest error or a failure by wire transfer the Accounting Referee to comply with the principles and methods set forth in this Agreement. The fees and costs of immediately available funds to an account or accounts designated the Accounting Referee, if one is required, shall be payable (i) fifty percent (50%) out of the Stockholders’ Representative Expense Fund (as defined in Section 2.6), on the one hand, and (ii) fifty percent (50%) by SellerBuyer, on the other hand. (hd) In the event that Estimated the Final Closing Date Value Adjustment (as defined below) is greater than a negative amount, the parties shall cause the Escrow Agent to release to Buyer (out of the Escrow Funds) the number of Escrow Shares (rounded to the nearest whole number) and Escrow Cash having an aggregate value equal to the absolute value of the Final Closing Date Value Adjustment (as reflected determined in accordance with the Escrow Agreement). In the event that the Final Closing Adjustment is a positive amount then, subject to Section 2.9 hereof, Buyer shall deliver to the Exchange Agent (as defined in Section 3.2(a)) the number of shares of Buyer Stock (rounded to the next whole number) or, with respect to the entitlements of Non-Accredited Investors and Electing Employee Stockholders among the Stockholders, cash in lieu thereof (in the case of an Electing Employee Stockholder, in the same proportion that the cash received by him or her represents to the aggregate merger consideration received by such Electing Employee Stockholder), having an aggregate value equal to such Final Closing Adjustment (as determined in accordance with the Escrow Agreement), and the Exchange Agent shall distribute such shares or cash proportionally to the Stockholders based on the each such Stockholder’s Pro Rata Portion of such Final Closing Statement as finally determined pursuant Adjustment, subject to all applicable federal, state and local Tax withholdings. Any delivery, release or distribution made under this Section 2.5, Seller shall, 2.5(d) shall be made within 2 five (5) Business Days of the final determination thereofof the True-up Statement. Such additional shares of Buyer Stock and cash, transfer if any, are intended to Purchaser be treated for Tax purposes as consideration for the amount Company Stock purchased by Buyer in the Merger and shall be treated as such consideration (subject to any requirement to treat a portion as imputed interest) for all Tax purposes except to the extent otherwise required by a final determination of such excessa Taxing Authority. For purposes of this Section 2.5(d), together with interest thereon from and including the Closing Date to but not including the date of such transfer, computed at the Interest Rate, by wire transfer of immediately available funds to an account designated by Purchaser.terms used herein shall be defined as follows:

Closing and Post-Closing Adjustments. (a) Not later than the fifth Business Day prior to the Closing Date, Seller and Parent shall deliver to Purchaser a statement which shall be in the form attached hereto as Schedule 2.4(a) (the “Estimated Closing Statement”), consisting of (i) an estimated balance sheet of MONY as of the Closing Date after giving effect to the Pre-Closing Transactions and pro forma effect to the sale of Investment Assets that will be effected at the Closing pursuant to Section 5.16(b), (ii) setting forth an estimated calculation in reasonable detail of Adjusted Statutory Book Value the GAAP Tangible Equity as of the Closing Date (the “Estimated Adjusted Statutory Book ValueGAAP Tangible Equity”), (iii) an estimated calculation in reasonable detail together with a certification of a senior officer of Seller that the Tax Asset Value as of the Closing Date (the “Estimated Tax Asset Value”), (iv) an estimated calculation of the Initial Reinsurance Premium and the Adjusted Ceding Commission (each as defined in the MLOA Reinsurance Agreement) and (v) a list of the Transferred Assets (as defined in the MLOA Reinsurance Agreement) to be transferred by MLOA to Purchaser or, at Purchaser’s discretion, to Purchaser by transfer to the Trust Account (as defined in the MLOA Reinsurance Agreement), on the Closing Date pursuant to the MLOA Reinsurance Agreement, including the Company Statutory Book Value (including investment income due and accrued, but excluding the amount of any principal and interest (to the extent included in such valuation) paid or to be paid to MLOA (and not Purchaser) following the date of determination as holder of record of such asset on or prior to the Closing) as of the last day of the second month immediately preceding the month in which the Closing shall occur or, in the case of the Closing occurring on December 31, 2013, as of November 30, 2013, or in any case as of such other date mutually agreed by the parties. The Estimated Closing Statement shall be was estimated in good faith and based upon GAAP and the Books and Records after giving effect to the Pre-Closing Transactions and pro forma effect to the sale of Investment Assets that will be effected at the Closing pursuant to Section 5.16(b). The Estimated Closing Statement shall be in the form of Schedule 2.5(a)(i) hereto and prepared and calculated in accordance with the methodologies, procedures, judgments, assumptions and estimates described on Schedule 2.5(a)(ii) hereto (the “Closing Statement Methodologies”). For illustrative purposes only (except with respect to the representation set forth in the last sentence of Section 3.16(a)(i)), attached as Schedule 2.5(a)(iii) hereto is an Estimated Closing Statement as of and for the period ended on December 31, 2012, calculated using the Closing Statement Methodologies (the “Pro Forma Closing Statement”)Records. (b) Purchaser Seller shall, on or before the date that is 90 sixty (60) calendar days after the Closing Date, deliver to Seller Purchaser a statement (the “Closing Statement”) consisting of (i) a balance sheet of MONY after giving effect to the Pre-Closing Transactions and pro forma effect to the sale of Investment Assets that will be effected at the Closing pursuant to Section 5.16(b), and (ii) calculations calculation in reasonable detail of each of the Adjusted Statutory Book Value and the Tax Asset Value, in each case GAAP Tangible Equity as of the Closing Date, in the same format as the Estimated Closing Statement, and prepared in accordance together with a certification of a senior officer of Seller to the same effect with respect to the Closing Statement Methodologiesas the certification of Seller’s senior officer delivered with respect to the Estimated Closing Statement. (c) The Closing Statement shall become final, binding and conclusive upon Seller, Parent Seller and Purchaser on the sixtieth day following SellerPurchaser’s receipt of the Closing Statement, unless prior to such sixtieth day Seller Purchaser delivers to Purchaser Seller a written notice (a “Dispute Notice”) stating that Seller Purchaser believes the Closing Statement contains mathematical errors that would result in an adjustment to the Purchase Price in excess of $1,000,000 or was not prepared in accordance with the Closing Statement Methodologies GAAP, and specifying in reasonable detail each item that Seller Purchaser disputes (each, a “Disputed Item”), the amount in dispute for each Disputed Item and the reasons supporting SellerPurchaser’s positions. (d) If Seller Purchaser delivers a Dispute Notice, then Seller and Purchaser shall seek in good faith to resolve the Disputed Items during the thirty-day period beginning on the date Purchaser Seller receives the Dispute Notice (the “Resolution Period”). If Seller and Purchaser reach agreement with respect to any Disputed Items, Purchaser Seller shall revise the Closing Statement to reflect such agreement. (e) If Purchaser and Seller are unable to resolve all of the Disputed Items during the Resolution Period, then Purchaser and Seller shall jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to Ernst & Young PricewaterhouseCoopers LLP or such other independent accounting firm of nationally recognized standing as may be mutually agreed by Purchaser and Seller (the “Transaction Consultant”). Purchaser and Seller shall, promptly (and in any event within 10 Business Days) after the Transaction Consultant’s engagement, each submit to the Transaction Consultant their respective computations of the Unresolved Items still in dispute and information, arguments and support for their respective positions, and shall concurrently deliver a copy of such materials to the other party. Each party shall then be given an opportunity to supplement the information, arguments and support included in its initial submission with one additional submission to respond to any arguments or positions taken by the other party in such other party’s initial submission, which supplemental information shall be submitted to the Transaction Consultant (with a copy thereof to the other party) within 5 Business Days after the first date on which both parties have submitted their respective initial submissions to the Transaction Consultant. The Transaction Consultant shall thereafter be permitted to request additional or clarifying information from the parties, and each of the parties shall use its reasonable best efforts to furnish to the Transaction Consultant such work papers and other documents and information pertaining to the Unresolved Items as the Transaction Consultant may reasonably request. The Transaction Consultant shall act as an arbitrator to determine, based solely on presentations by Purchaser and Seller and not by independent review, only the Unresolved Items still in disputedispute and shall be limited to those adjustments, if any, required to be made for the Closing Statement to comply with the provisions of this Agreement. Purchaser and Seller shall agree, promptly after the Transaction Consultant has been appointed, on procedures governing the resolution of any dispute by the Transaction Consultant, provided that if Purchaser and Seller fail to agree on such procedures, the dispute resolution procedures of the American Arbitration Association shall govern. Purchaser and Seller shall use their reasonable best efforts to cause the Transaction Consultant to issue its written determination regarding the Unresolved Items within thirty days after such items are submitted for review. The Transaction Consultant shall make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 2.5 2.4 and the Closing Statement MethodologiesGAAP, and in no event shall the Transaction Consultant’s determination of the Unresolved Items be for an amount that is outside the range of Purchaser’s and Seller’s disagreement. Each of Purchaser and Seller shall use its reasonable best efforts to furnish to the Transaction Consultant such work papers and other documents and information pertaining to the Unresolved Items as the Transaction Consultant may reasonably request. The determination of the Transaction Consultant shall be final, binding and conclusive upon Purchaser, Purchaser and Seller and Parent absent manifest error, and Purchaser Seller shall revise the Closing Statement to reflect such determination upon receipt thereof. The fees, expenses and costs of the Transaction Consultant shall be borne equally by Purchaser and Seller. (f) Each party shall use its reasonable best efforts to provide promptly to the other party parties all information and reasonable access to employees as such other parties shall reasonably request in connection with review of the Estimated Closing Statement, the Closing Statement or the Dispute Notice, as the case may be, including all work papers of the accountants who audited, compiled or reviewed such statements or notices (subject to the requesting party and its representatives entering into reasonable customary any undertakings required by the other party’s accountants in connection therewith), and shall otherwise cooperate in good faith with such other parties to arrive at a final determination of the Closing Statement. (g) In the event that the GAAP Tangible Equity as of the Closing Date Value (as reflected on the Closing Statement as finally determined pursuant to this Section 2.5 2.4) is greater than the Estimated Closing Date ValueGAAP Tangible Equity, Purchaser shall, within 2 three (3) Business Days of the determination thereof, transfer to Seller the amount of such excess, together with interest thereon from and including the Closing Date to but not including the date of such transfer, computed at the Interest RateLIBOR, by wire transfer of immediately available funds to an account or accounts designated by Seller. (h) In the event that Estimated the GAAP Tangible Equity as of the Closing Date Value is greater than Closing Date Value (as reflected on the Closing Statement as finally determined pursuant to this Section 2.52.4) is less than the Estimated GAAP Tangible Equity, Seller shall, within 2 three (3) Business Days of the determination thereof, transfer to Purchaser the amount of such excessdifferential, together with interest thereon from and including the Closing Date to but not including the date of such transfer, computed at the Interest RateLIBOR, by wire transfer of immediately available funds to an account designated by Purchaser.

Closing and Post-Closing Adjustments. (a) Not No later than the fifth Business Day prior to two (2) days before the Closing Date, Seller shall prepare, or cause to be prepared, and Parent shall deliver to Purchaser a statement (the “Estimated Preliminary Closing Statement”), consisting of (i) an estimated balance sheet of MONY as Balance Sheet and its calculation of the Preliminary Working Capital. The value of the inventory to be included in Preliminary Working Capital shall be determined as follows. Promptly after the date hereof, Purchaser and Seller shall work together in good faith to determine the value of the inventory based upon saleability, returnability and reserves taken in accordance with past practices. In the event that Purchaser and Seller cannot agree upon the value of the inventory, the disputed amount shall not be included in the inventory reflected on the Preliminary Closing Date after giving effect Balance Sheet, and Seller shall reserve all rights to the Pre-Closing Transactions and pro forma effect to the sale of Investment Assets that will be effected at the Closing dispute such valuation pursuant to Section 5.16(b), (ii) an estimated calculation in reasonable detail of Adjusted Statutory Book Value as of the Closing Date (the “Estimated Adjusted Statutory Book Value”), (iii) an estimated calculation in reasonable detail of the Tax Asset Value as of the Closing Date (the “Estimated Tax Asset Value”), (iv) an estimated calculation of the Initial Reinsurance Premium and the Adjusted Ceding Commission (each as defined in the MLOA Reinsurance Agreement) and (v) a list of the Transferred Assets (as defined in the MLOA Reinsurance Agreement) to be transferred by MLOA to Purchaser or, at Purchaser’s discretion, to Purchaser by transfer to the Trust Account (as defined in the MLOA Reinsurance Agreement), on the Closing Date pursuant to the MLOA Reinsurance Agreement, including the Company Statutory Book Value (including investment income due and accrued, but excluding the amount of any principal and interest (to the extent included in such valuation) paid or to be paid to MLOA (and not Purchaser) following the date of determination as holder of record of such asset on or prior to the Closing) as of the last day of the second month immediately preceding the month in which the Closing shall occur or, in the case of the Closing occurring on December 31, 2013, as of November 30, 2013, or in any case as of such other date mutually agreed by the parties. The Estimated Closing Statement shall be estimated in good faith and based upon the Books and Records after giving effect to the Pre-Closing Transactions and pro forma effect to the sale of Investment Assets that will be effected at the Closing pursuant to Section 5.16(b). The Estimated Closing Statement shall be in the form of Schedule 2.5(a)(i) hereto and prepared and calculated in accordance with the methodologies, procedures, judgments, assumptions and estimates described on Schedule 2.5(a)(ii) hereto (the “Closing Statement Methodologies”). For illustrative purposes only (except with respect to the representation set forth in the last sentence of Section 3.16(a)(i)), attached as Schedule 2.5(a)(iii) hereto is an Estimated Closing Statement as of and for the period ended on December 31, 2012, calculated using the Closing Statement Methodologies (the “Pro Forma Closing Statement”1.3(d). (b) The amount by which the Preliminary Working Capital is greater or lesser than the Balance Sheet Working Capital shall be added to or subtracted from, as the case may be, the Purchase Price to be paid by Purchaser shallto Seller at the Closing. For purposes of illustration, on or before an example of the date that calculation of Preliminary Working Capital and the adjustment to the Purchase Price is 90 set forth in Section 1.3(b) of the Disclosure Schedule. (c) No later than sixty (60) days after the Closing Date, Seller shall prepare, or cause to be prepared, and deliver to Seller a statement (the “Closing Statement”) consisting of (i) a balance sheet of MONY after giving effect to the Pre-Closing Transactions and pro forma effect to the sale of Investment Assets that will be effected at Purchaser the Closing pursuant to Section 5.16(b)Balance Sheet and its calculation of Closing Working Capital. The Company shall, and (ii) calculations in reasonable detail of each Purchaser shall cause the Company to, make available to Seller such employees and records of the Adjusted Statutory Book Value and Company as may be necessary for the Tax Asset Value, in each case as preparation of the Closing DateBalance Sheet. The value of the inventory reflected on the Closing Balance Sheet shall be determined based upon its saleability, in the same format as the Estimated Closing Statement, returnability and prepared reserves taken in accordance with the Closing Statement Methodologies. (c) The Closing Statement shall become final, binding and conclusive upon Seller, Parent and Purchaser on the sixtieth day following Seller’s receipt of the Closing Statement, unless prior to such sixtieth day Seller delivers to Purchaser a written notice (a “Dispute Notice”) stating that Seller believes the Closing Statement contains mathematical errors or was not prepared in accordance with the Closing Statement Methodologies and specifying in reasonable detail each item that Seller disputes (each, a “Disputed Item”), the amount in dispute for each Disputed Item and the reasons supporting Seller’s positionspast practice. (d) If Seller delivers a Dispute NoticeWithin fifteen (15) days following receipt of the Closing Balance Sheet, then Seller and Purchaser shall seek inform Seller in writing of any objections to the calculations on the Closing Balance Sheet (the "Objections"), setting forth written explanations of the Objections and the adjustments which Purchaser believes should be made, including, without limitation, any adjustments to inventory consistent with the inventory valuation methodology set forth in Sections 1.3(a) and (c). Following notice of the Objections, Seller shall have fifteen (15) days to review and respond in writing to the Objections setting forth written explanations in those areas where it disagrees with the Objections. Purchaser and Seller will then have an additional fifteen (15) days at the end of such period to attempt to resolve in good faith to resolve the Disputed Items during the thirty-day period beginning on the date Purchaser receives the Dispute Notice (the “Resolution Period”). If Seller and Purchaser reach agreement with respect to any Disputed Items, Purchaser shall revise the Closing Statement to reflect such agreementObjections. (e) If Purchaser and Seller are unable to resolve all of their disagreements with respect to the Disputed Items during Objections within the Resolution Periodtime periods specified in Section 1.3(d), then Purchaser and Seller above, they shall jointly engage and submit refer any unresolved Objections to a nationally recognized firm of independent certified public accountants as to which the unresolved Disputed Items parties mutually agree (the “Unresolved Items”) to Ernst & Young LLP or such other independent accounting firm of nationally recognized standing as may be mutually agreed "Arbitrator"), who shall determine, based on the information submitted by Purchaser and Seller (the “Transaction Consultant”). Purchaser and Seller shall, promptly (and in any event within 10 Business Days) after the Transaction Consultant’s engagement, each submit to the Transaction Consultant their respective computations of the Unresolved Items still in dispute and information, arguments and support for their respective positions, and shall concurrently deliver a copy of such materials to the other party. Each party shall then be given an opportunity to supplement the information, arguments and support included in its initial submission with one additional submission to respond to any arguments or positions taken by the other party in such other party’s initial submission, which supplemental information shall be submitted to the Transaction Consultant (with a copy thereof to the other party) within 5 Business Days after the first date on which both parties have submitted their respective initial submissions to the Transaction Consultant. The Transaction Consultant shall thereafter be permitted to request additional or clarifying information from the parties, and each of the parties shall use its reasonable best efforts to furnish to the Transaction Consultant such work papers and other documents and information pertaining to the Unresolved Items as the Transaction Consultant may reasonably request. The Transaction Consultant shall act as an arbitrator to determine, based solely on presentations by Purchaser and Seller and not by independent review), and only the Unresolved Items still in dispute. Purchaser and Seller shall use their reasonable best efforts to cause the Transaction Consultant to issue its written determination regarding the Unresolved Items within thirty days after such items are submitted for review. The Transaction Consultant shall make a determination with respect to the Unresolved Items only remaining differences so submitted, whether and in a manner consistent with this Section 2.5 and to what extent Closing Working Capital, as shown on the Closing Statement MethodologiesBalance Sheet, and in no event shall the Transaction Consultant’s determination of the Unresolved Items be for an amount that is outside the range of Purchaser’s and Seller’s disagreementrequires adjustment. The determination of the Transaction Consultant Arbitrator's determination, which shall be finalgiven to Purchaser and Seller within thirty (30) days of referral to the Arbitrator, shall be final and binding and conclusive upon Purchaser, Seller and Parent absent manifest error, and Purchaser shall revise the Closing Statement to reflect such determination upon receipt thereofparties hereto. The fees, fees and expenses and costs of the Transaction Consultant such Arbitrator shall be borne equally paid one-half by Purchaser Buyer and Sellerone-half by Sellers. (f) Each party If the Closing Working Capital is greater than the Preliminary Working Capital, then the difference shall use its reasonable best efforts be paid by Purchaser to provide promptly to the other party all information and reasonable access to employees as such other parties shall reasonably request in connection with review Seller within five (5) business days of the Estimated Closing Statement, the Closing Statement or the Dispute Notice, as the case may be, including all work papers of the accountants who audited, compiled or reviewed such statements or notices (subject to the requesting party and its representatives entering into reasonable customary undertakings required by the other party’s accountants in connection therewith), and shall otherwise cooperate in good faith with such other parties to arrive at a final determination of the amount of such adjustment, which shall be payable in cash by wire transfer or delivery of immediately available funds. If the Closing StatementWorking Capital is less than the Preliminary Working Capital, then the difference shall be paid by Parent or Seller to Purchaser within five business days of the final determination of the amount of such adjustment, which shall be payable in cash by wire transfer or delivery of immediately available funds. (g) In the event that the For all Tax purposes, any post-Closing Date Value as reflected on the Closing Statement as finally determined Purchase Price adjustment pursuant to this Section 2.5 is greater than Estimated Closing Date Value, Purchaser shall, within 2 Business Days of Sections 1.3(f) and 1.4(d) shall be treated as an adjustment to the determination thereof, transfer to Seller the amount of such excess, together with interest thereon from and including the Closing Date to but not including the date of such transfer, computed at the Interest Rate, by wire transfer of immediately available funds to an account or accounts designated by SellerPurchase Price. (h) In the event that Estimated Closing Date Value is greater than Closing Date Value as reflected on the Closing Statement as finally determined pursuant to this Section 2.5, Seller shall, within 2 Business Days of the determination thereof, transfer to Purchaser the amount of such excess, together with interest thereon from and including the Closing Date to but not including the date of such transfer, computed at the Interest Rate, by wire transfer of immediately available funds to an account designated by Purchaser.