Common use of Post-Closing Merger Consideration Adjustment Clause in Contracts

Post-Closing Merger Consideration Adjustment. (i) Within sixty (60) days after the Closing Date, the Stockholders shall prepare and deliver to Acquiror an update of the Estimated Closing Net Debt Statement (the “Post-Closing Net Debt Statement”) setting forth the Net Debt of the Companies and the Designated Subsidiaries (presented as if they were one consolidated entity as of immediately following Closing) as of 11:59 p.m (EST) on the Business Day immediately prior to the Closing Date (Net Debt, as it may be adjusted pursuant to this Section 2(e), the “Final Closing Net Debt”). Without limiting any other rights and remedies that may be applicable, in the event of a breach of any covenant set forth in clause (y) of Section 5(a)(i) that would otherwise reduce the Final Closing Net Debt as of such day, the Final Closing Net Debt shall be calculated as though such breach had not occurred. Acquiror agrees to provide the Stockholders and their representatives with reasonable access to the properties and books and records of each of Surviving Entities and the Designated Subsidiaries and the personnel responsible therefor or otherwise involved in the preparation thereof and otherwise to cooperate with the Stockholders and their representatives as they may reasonably request in connection with the preparation of the Post-Closing Net Debt Statement. (ii) The Post-Closing Net Debt Statement will become final and binding upon the Parties at 5:00 p.m. (EST) on the thirtieth (30th) day following the Stockholders’ delivery thereof unless Acquiror gives the Stockholders written notice of a good faith disagreement with any amount or computation thereof (the “Notice of Disagreement”) prior to such date and time. The Notice of Disagreement shall set forth Acquiror’s good faith determination of the Final Closing Net Debt and specify, in reasonable detail, the nature of any disagreement with the Stockholders’ determination. If a Notice of Disagreement is received by the Stockholders in a timely manner, the Post-Closing Net Debt Statement (as adjusted, as applicable, pursuant to this Section 2(e) to reflect final resolution of differences, if any, between the Parties) will become final and binding upon the Parties as of the earlier of (x) the date on which the Parties resolve in writing all differences they have with respect to the matters specified in the Notice of Disagreement and (y) the date on which all such differences are resolved by a determination of the Accountants as described in clause (iii) below. (iii) During the thirty (30) day period following the receipt of the Notice of Disagreement, the Stockholders and Acquiror shall seek in good faith to resolve the matter(s) specified in the Notice of Disagreement. If, by the expiry of that thirty-day period, the Stockholders and Acquiror have not reached an agreement on all such matters then, within ten (10) Business Days from the end of the thirty-day period, the Parties shall submit all matters that remain in dispute (the “Dispute”) to the Accountants for sole and final review and resolution as the Accountants determine to be appropriate. With respect to each disputed item or amount, the Accountants shall adopt a position that is equal to Acquiror’s proposed position, equal to the Stockholders proposed position, or between the positions proposed by Acquiror and the Stockholders. The Accountants shall establish the process of reviewing any Dispute, but shall be directed by the Parties to provide their final determination with respect to any Dispute as soon as practicable and in any event within thirty (30) days following the date on which the Dispute is first submitted to the Accountants pursuant to this Section 2(e) for their consideration. Each Party agrees to promptly make available to each other and to the Accountants all documents, books, records and personnel under that Party’s control as the Accountants shall determine in their judgment to be necessary or relevant to their review of the Dispute and otherwise to cooperate with the other parties and the Accountants to facilitate a prompt resolution of the Dispute; provided that nothing contained in this Section 2(e) shall require a Party to disclose any attorney-client privileged information to the extent that the disclosure thereof may result in the loss of attorney-client privilege by such Party. (iv) If Final Closing Net Debt is different from the projected Net Debt amount as of the Closing Date (determined based on the Net Debt Statement in accordance with Exhibit E), then the Merger Consideration will be adjusted following the Closing (the Merger Consideration following such adjustment, the “Final Merger Consideration”) and Acquiror or the Stockholders, as applicable, will pay to the other the aggregate amount of the excess or shortfall (after giving full credit for any adjustments made to the Merger Consideration in respect of Net Debt at Closing pursuant to Section 2(d)). Any payment to the Stockholders described in this Section 2(e)(iv) shall be made by Acquiror to the Stockholders in cash by wire transfer of immediately available funds to the account designated by the Stockholders promptly and in any event within five (5) Business Days of the date on which the Post-Closing Net Debt Statement became final (and allocated among the Stockholders in accordance with the allocation method set forth in Section 2(a)(ii)). In the event of any delay in payment by Acquiror of the amount required by this Section 2(e)(iv) beyond five (5) Business Days after the Post-Closing Net Debt Statement became final, the Stockholders also will be entitled to receive interest on the unpaid amount from such fifth Business Day at 10% per annum, compounding monthly, until all amounts owing hereunder have been paid in full. Any payment to Acquiror as described in the first sentence of this Section 2(e)(iv) shall be effected by Acquiror canceling the applicable number of shares of its common stock (determined based on the Value Per Share, rounded to the nearest whole number of shares) that it delivered to the Stockholders at Closing.

Post-Closing Merger Consideration Adjustment. (ia) Within sixty Promptly following the Closing Date (60but in any event within ninety (90) days after the Closing Date), I RET, at its expense, shall cause to be prepared and delivered to the Stockholders Shareholders a certification (the "Closing Certificate") prepared by the Auditor. The Closing Certificate shall prepare and deliver to Acquiror an update include: (i) a special purpose report of the Estimated Closing Net Debt Statement (the “Post-Closing Net Debt Statement”) Auditor setting forth the Net Debt of scope and procedures used to prepare and present the Companies and the Designated Subsidiaries (presented as if they were one consolidated entity as of immediately following Closing) as of 11:59 p.m (EST) on the Business Day immediately prior to the Closing Date (Net Debt, as it may be adjusted pursuant to this Section 2(e), the “Final Closing Net Debt”). Without limiting any other rights and remedies that may be applicable, in the event of a breach of any covenant financial matters set forth in clause (y) of Section 5(a)(i) that would otherwise reduce the Final Closing Net Debt as of such day, the Final Closing Net Debt shall be calculated as though such breach had not occurred. Acquiror agrees to provide the Stockholders and their representatives with reasonable access to the properties and books and records of each of Surviving Entities and the Designated Subsidiaries and the personnel responsible therefor or otherwise involved in the preparation thereof and otherwise to cooperate with the Stockholders and their representatives as they may reasonably request in connection with the preparation of the Post-Closing Net Debt Statement.Certificate; and (ii) The Post-Closing Net Debt Statement will become final a calculation and binding upon comparison of (A) the Parties at 5:00 p.m. (EST) on the thirtieth (30th) day following the Stockholders’ delivery thereof unless Acquiror gives the Stockholders written notice of a good faith disagreement with any amount or computation thereof (the “Notice of Disagreement”) prior to such date and time. The Notice of Disagreement shall Estimated Merger Consideration as set forth Acquiror’s good faith determination of the Final Closing Net Debt and specify, in reasonable detail, the nature of any disagreement with the Stockholders’ determination. If a Notice of Disagreement is received by the Stockholders in a timely manner, the Post-Closing Net Debt Statement (as adjusted, as applicable, pursuant to this Section 2(e) to reflect final resolution of differences, if any, between the Parties) will become final and binding upon the Parties as of the earlier of (x) the date on which the Parties resolve in writing all differences they have with respect to the matters specified in the Notice of Disagreement calculation prepared and (y) the date on which all such differences are resolved agreed to by a determination of the Accountants as described in clause (iii) below. (iii) During the thirty (30) day period following the receipt of the Notice of Disagreement, the Stockholders and Acquiror shall seek in good faith to resolve the matter(s) specified in the Notice of Disagreement. If, by the expiry of that thirty-day period, the Stockholders and Acquiror have not reached an agreement on all such matters then, within ten (10) Business Days from the end of the thirty-day period, the Parties shall submit all matters that remain in dispute (the “Dispute”) to the Accountants for sole and final review and resolution as the Accountants determine to be appropriate. With respect to each disputed item or amount, the Accountants shall adopt a position that is equal to Acquiror’s proposed position, equal to the Stockholders proposed position, or between the positions proposed by Acquiror IRET and the Stockholders. The Accountants shall establish the process of reviewing any Dispute, but shall be directed by the Parties to provide their final determination with respect to any Dispute as soon as practicable and in any event within thirty (30) days following the date on which the Dispute is first submitted to the Accountants pursuant to this Section 2(e) for their consideration. Each Party agrees to promptly make available to each other and to the Accountants all documents, books, records and personnel under that Party’s control as the Accountants shall determine in their judgment to be necessary or relevant to their review of the Dispute and otherwise to cooperate with the other parties and the Accountants to facilitate a prompt resolution of the Dispute; provided that nothing contained in this Section 2(e) shall require a Party to disclose any attorney-client privileged information to the extent that the disclosure thereof may result in the loss of attorney-client privilege by such Party. (iv) If Final Closing Net Debt is different from the projected Net Debt amount Company as of the Closing Date Date, and (determined based on B) the Net Debt Statement Merger Consideration calculated by the Auditor in accordance with Exhibit Ethis Section 2.16 and Schedule 2.16 , including the Parties' methodology in calculating the Estimated Merger Consideration set forth therein or therewith (the "Merger Consideration Calculation"), then . Any difference between the Estimated Merger Consideration and the Merger Consideration will shall be adjusted following deemed the "Merger Consideration Adjustment ." In the event that: (1) the Estimated Merger Consideration is greater than the Merger Consideration, the Shareholders, on a pro-rata basis in accordance with their respective pre-Closing (ownership interest(s) in the Company, hereby authorize IRET to deduct their pro-rata share of the Merger Consideration following Adjustment from future dividend payments to such adjustment, Shareholder until the “Final Merger Consideration”) and Acquiror Consideration Adjustment amount is satisfied. IRET shall not have the right or authorization to deduct any amount from a dividend due to a Shareholder in excess of the Stockholders, as applicable, will pay to the other the aggregate Shareholder's pro-rata amount of the excess or shortfall Merger Consideration Adjustment; or (after giving full credit for any adjustments made 2) the Estimated Merger Consideration is less than the Merger Consideration, IRET shall remit in cash to the Shareholders, on a pro-rata basis in accordance with their respective pre-Merger ownership interest(s) in the Company, the amount of the Merger Consideration in respect of Net Debt at Closing pursuant to Section 2(d))Adjustment. Any payment All amounts owed by IRET to the Stockholders described in this Section 2(e)(iv) Shareholders shall be made paid by Acquiror to the Stockholders in cash certified or bank cashier's check or by wire transfer of immediately available funds to the account designated by the Stockholders promptly and in any event within five (5) Business Days business days of the date on which (i) end of the Post-Response Period, in the event none of the Shareholders object to the Closing Net Debt Statement became final Certificate within the Response Period, or (ii) receipt of the Independent Accountant's decision with respect to and allocated among in the Stockholders in accordance event of a dispute. The Auditor's calculation and comparison shall indicate whether the Merger Consideration Adjustment is due (i) to the Shareholders, or (ii) IRET; and (iii) copies of all supplementary documents, work papers and other data relating to the Closing Certificate; and (iv) such other supplementary evidence as the Shareholders may require either prior to or after delivery of the Closing Certificate. (b) In connection with the allocation method preparation of the Merger Consideration Calculation and all other matters arising under the Closing Certificate, IRET and the Merger Subsidiary shall afford the Shareholders and their representatives complete access to the books, records, personnel and facilities of or pertaining to the Company and permit the Auditor review of such information as is necessary or desirable to review the Merger Consideration Calculation and all other statements arising under the Closing Certificate. (c) The calculation and form of the Estimated Merger Consideration and the Merger Consideration Calculation shall be in the form set forth in Schedule 2.16, with supporting schedules attached. The Merger Consideration Calculation shall be prepared by the Auditor from the consolidated audited financial statements of the Company and its subsidiary dated January 31, 2003 (resulting from the post-Closing Audit described in Section 2(a)(ii11.7 of this Agreement). The Estimated Merger Consideration and the Merger Consideration Calculation made, respectively, by the Parties and the Auditor shall depart from the GAAP presentation of any and all consolidated financial statements of the company in the following manner(s): (i) The historical cost GAAP calculation of Rental Real Estate, Real Estate Development in Progress, and the associated Accumulated Depreciation thereto, shall be eliminated. In its place Rental Real Estate shall be given a value of $67,135,000, and Real Estate Development in Progress shall be given a value of $2,760,000. (ii) An asset entitled "Ripley, Tennessee Property" shall be an addition to Merger Consideration and valued at $250,000. (iii) An asset entitled "Pre-Closing Lakeville Property Improvements" shall be an addition to Merger Consideration and valued at $52,945. (iv) The GAAP calculation of the asset for Unbilled Real Estate Taxes shall be eliminated. In its place, an addition to Merger Consideration shall be calculated for Unbilled Real Estate Taxes for all such Taxes not yet billed for the actual amounts that have accrued, but have not been paid by the tenants, for the month of January, 2003 and any month in the calendar year 2002. For purposes of this calculation, the month of January shall be the amount of Real Estate Taxes that would be paid by the tenant for the month of January, 2003 and the unpaid months of 2002 under the applicable Leased Real Estate lease. (v) The historical cost GAAP calculation of furniture, fixtures and equipment (excluding transportation equipment), and associated depreciation, for the Company (excluding Westlake Liquors, Inc.) shall be eliminated. In its place, such furniture, fixtures and equipment shall be an addition to Merger Consideration and valued at $300,000. (vi) The historical cost GAAP calculation of transportation equipment (autos), and associated depreciation, shall be eliminated. In its place, such transportation equipment shall be an addition to Merger Consideration and valued at $50,175. (vii) The historical cost GAAP calculation of furniture, fixtures and equipment and associated accumulated depreciation, for Westlake Liquors, Inc. shall be eliminated. In its place such furniture, fixtures and equipment shall be an addition to Merger Consideration and valued at $50,000. (viii) A non-GAAP accrual of mortgage interest that will be payable by the Surviving Corporation in February, 2003, with respect to mortgages on the Owned Real Estate shall be a subtraction from Merger Consideration. (ix) The GAAP amounts computed for Accrued Real Property Taxes shall be eliminated. In its place, an accrual of one-twelfth (1/12th) of the aggregate Real Estate Taxes that will be payable by the Surviving Corporation in May and October, 2003 shall be a subtraction from Merger Consideration. (x) The amount of $138,000 for broker fees (described in Section 3.25), to the extent not accrued under GAAP in the January 31, 2003, consolidated audited financial statements of the Company, shall be subtracted from Merger Consideration. Notwithstanding the foregoing, if such amount is or has been paid on or before January 31, 2003, no subtraction shall be made from Merger Consideration. (xi) No accrual shall be made for the Auditor's January 31, 2003, Audit of the Company. (d) If any Shareholder concludes that any matter reported in the Closing Certificate, including the Merger Consideration Calculation and/or the Merger Consideration Adjustment, is not accurate, such Shareholder shall, within thirty (30) days after its receipt of the Closing Certificate (the "Response Period"), deliver to IRET a written statement setting forth a specific description of each of its objections and each of any discrepancies believed to exist. If no notice of any objections or discrepancies is given within the Response Period, then the calculations set forth in the Closing Certificate shall be controlling for all purposes of this Agreement, and IRET or the Shareholders, as the case may be, shall be obligated to the other Party in the amount of the Merger Consideration Adjustment set forth in the Closing Certificate. (e) IRET and the Shareholders shall use good faith efforts to jointly resolve the properly noticed objections and discrepancies within fifteen (15) days of the receipt of the written statement of objections and discrepancies, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute. If IRET and the Shareholders are unable to resolve the objections and discrepancies to their mutual satisfaction within such fifteen (15) day period, then the matter shall be submitted to a mutually acceptable accounting firm of national reputation (the "Independent Accountants "). In submitting a dispute to the event Independent Accountants, each of the Parties shall concurrently furnish, at its own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any delay in payment by Acquiror of written communication. The Independent Accountants may conduct a conference concerning the amount required by this Section 2(e)(ivobjections and disagreements between the IRET and the Shareholders, at which conference each Party shall have the right to (i) beyond five present its documents, materials and other evidence (5) Business Days after the Post-Closing Net Debt Statement became final, the Stockholders also will be entitled to receive interest on the unpaid amount from such fifth Business Day at 10% per annum, compounding monthly, until all amounts owing hereunder have been paid in full. Any payment to Acquiror as described in the first sentence of this Section 2(e)(iv) shall be effected by Acquiror canceling the applicable number of shares of its common stock (determined based on the Value Per Share, rounded previously provided to the nearest whole number of sharesIndependent Accountants and the other Party), and (ii) that it delivered to the Stockholders at Closing.have present its or their advisors, accountants and/or counsel. The Independent

Post-Closing Merger Consideration Adjustment. (ia) Within sixty (60) calendar days after the Closing Date, Buyer shall cause to be prepared and delivered to the Stockholders shall prepare and deliver to Acquiror an update of the Estimated Closing Net Debt Statement Stockholders’ Representative a statement (the “Post-Closing Net Debt Statement”) setting forth the Net Debt Working Capital, the Net Funded Indebtedness, the Transaction Related Expenses (to the extent not paid by the Company or any of the Companies and the Designated Subsidiaries (presented as if they were one consolidated entity as of immediately following Closing) as of 11:59 p.m (EST) on the Business Day immediately its Affiliates prior to the Closing Date Closing) (Net Debt, as it may be adjusted except for any such Transaction Related Expenses reimbursable by Buyer pursuant to this Agreement (including Section 2(e5.2 and Section 12.7)), the “Final Excess Load-In Charge, and the components thereof. The Closing Statement and the Net Debt”Working Capital, the Net Funded Indebtedness, Transaction Related Expenses (to the extent not paid by the Company or any of its Affiliates prior to the Closing) (except for any such Transaction Related Expenses reimbursable by Buyer pursuant to this Agreement (including Section 5.2 and Section 12.7). Without limiting any other rights ) and remedies that may Excess Load-In Charge set forth therein shall be applicableprepared and calculated in good faith, and in the event of manner and on a breach of any covenant set forth basis consistent with the applicable definitions thereof and shall be in clause (y) of Section 5(a)(i) that would otherwise reduce the Final Closing same form and include the same line items as the Estimated Net Debt as of such dayWorking Capital calculation, the Final Closing Estimated Net Debt shall be calculated as though such breach had not occurred. Acquiror agrees to provide Funded Indebtedness calculation, the Stockholders and their representatives with reasonable access to the properties and books and records of each of Surviving Entities Estimated Transaction Related Expenses calculation and the Designated Subsidiaries Estimated Excess Load-In Charge calculation. If the Closing Statement is not so timely delivered, the Estimated Net Working Capital, the Estimated Net Funded Indebtedness, Estimated Transaction Related Expenses and the personnel responsible therefor Estimated Excess Load-In Charge will be deemed Final Net Working Capital, Final Net Funded Indebtedness, Final Transaction Related Expenses, and Final Excess Load-In Charge respectively, absent manifest error or otherwise involved in the preparation thereof and otherwise to cooperate with the Stockholders and their representatives as they may reasonably request in connection with the preparation of the Post-Closing Net Debt Statementfraud. (iib) The Post-After receipt of the Closing Net Debt Statement will become final and binding upon the Parties at 5:00 p.m. (EST) on the thirtieth (30th) day following Statement, the Stockholders’ delivery thereof unless Acquiror gives Representative will have sixty (60) calendar days to review the Stockholders written notice of a good faith disagreement with any amount or computation thereof (the “Notice of Disagreement”) prior to such date and timeClosing Statement. The Notice of Disagreement shall set forth Acquiror’s good faith determination of the Final Closing Net Debt and specify, in reasonable detail, the nature of any disagreement with Unless the Stockholders’ determinationRepresentative delivers written notice (which notice shall include the items and amounts in dispute and supporting documentation related thereto; such notice, a “Seller Dispute Notice”) to Buyer setting forth in reasonable detail the specific items disputed by the Stockholders’ Representative in good faith with respect thereto, and the specific basis for each such objection, on or prior to the sixtieth (60th) calendar day after the Stockholders’ Representative’s receipt of the Closing Statement, the Stockholders’ Representative will be deemed to have accepted and agreed to the Closing Statement and such statement (and the calculations contained therein) will be final, binding and conclusive, absent manifest error or fraud. If the Stockholders’ Representative delivers to Buyer a Seller Dispute Notice of Disagreement is received by within such sixty (60) calendar day period, Buyer and the Stockholders in a timely mannerStockholders’ Representative shall, the Post-Closing Net Debt Statement (as adjusted, as applicable, pursuant to this Section 2(e) to reflect final resolution of differences, if any, between the Parties) will become final and binding upon the Parties as of the earlier of (x) the date on which the Parties resolve in writing all differences they have with respect to the matters specified in the Notice of Disagreement and (y) the date on which all such differences are resolved by a determination of the Accountants as described in clause (iii) below. (iii) During during the thirty (30) day calendar days following delivery of such Seller Dispute Notice by the Stockholders’ Representative to Buyer (or such longer period following as they may mutually agree in writing) (the receipt of the Notice of Disagreement“Resolution Period”), the Stockholders and Acquiror shall seek attempt in good faith to resolve their differences with respect to the matter(sdisputed items (or calculations) specified in such Seller Dispute Notice (the Notice of Disagreement“Disputed Items”), and all other items (and all calculations relating thereto) will be final, binding and conclusive, absent manifest error or fraud. IfAny resolution by Buyer and the Stockholders’ Representative during the Resolution Period as to any Disputed Item shall be set forth in writing and will be final, binding and conclusive, absent manifest error or fraud. (c) If Buyer and the Stockholders’ Representative do not resolve all Disputed Items by the expiry of that thirty-day period, the Stockholders and Acquiror have not reached an agreement on all such matters then, within ten (10) Business Days from the end of the thirty-day periodResolution Period, the Parties shall submit then all matters that remain Disputed Items remaining in dispute (the “Dispute”) will be submitted to the Accountants for sole and final review and resolution as the Accountants determine Neutral Arbitrator pursuant to be appropriate. With respect to each disputed item or amount, the Accountants shall adopt a position that is equal to Acquiror’s proposed position, equal an engagement letter reasonably acceptable to the Stockholders proposed positionStockholders’ Representative and the Buyer. The Neutral Arbitrator shall act as an arbitrator to determine only those Disputed Items remaining in dispute, or between the positions proposed by Acquiror consistent with this Section 2.14, and shall request a statement from Buyer and the Stockholders’ Representative regarding such Disputed Items. The Accountants shall establish scope of the process disputes to be arbitrated by the Neutral Arbitrator is limited to those items or calculations specifically in dispute between Buyer and the Stockholders’ Representative; and the Neutral Arbitrator is not to make any other determination, including not making any determination as to whether the Closing Statement or Net Working Capital, Net Funded Indebtedness, Transaction Related Expenses or Excess Load-In Charge was prepared in accordance with GAAP or whether the agreed upon dollar amount of reviewing any Disputethe Target Net Working Capital is correct or appropriate or in accordance with GAAP or the definition of Net Working Capital. In resolving each Disputed Item, but the Neutral Arbitrator shall be directed bound by the Parties to provide their final determination with respect principles set forth in this Section 2.14 and may not assign a value to any Dispute Disputed Item greater than the greatest value for such Disputed Item claimed by any party or less than the lowest value for such Disputed Item claimed by any party. The parties further agree that the adjustment contemplated by this Section 2.14 is intended to show the change between the Estimated Net Working Capital and the Final Net Working Capital, the change between the Estimated Net Funded Indebtedness and the Final Net Funded Indebtedness, the change between Estimated Transaction Related Expenses and Final Transaction Related Expenses, and the change between Estimated Excess Load-In Charge and Final Excess Load-In Charge, and that such changes can only be measured if each calculation is done in a manner consistent with the applicable definitions thereof. All fees and expenses relating to the work, if any, to be performed by the Neutral Arbitrator will be allocated between Buyer and the Stockholders’ Representative (which, in the case of the Stockholders’ Representative, shall be payable by the Stockholders’ Representative solely out of the Reserve Amount, or by setoff against one or more Contingent Payments) in the same proportion that the aggregate amount of the Disputed Items so submitted to the Neutral Arbitrator that is unsuccessfully disputed by each such party (as soon as practicable finally determined by the Neutral Arbitrator) bears to the total amount of such Disputed Items so submitted. The Neutral Arbitrator will deliver to Buyer and the Stockholders’ Representative a written determination (such determination to include a work sheet setting forth all material calculations used in any event arriving at such determination and to be based solely on information provided to the Neutral Arbitrator by the Stockholders’ Representative and Buyer, and a written explanation in reasonable detail of each such determination) of the Disputed Items submitted to the Neutral Arbitrator within thirty (30) days following calendar days, or such longer period as may be required by the date on Neutral Arbitrator, of receipt of such Disputed Items, which determination will be final, binding and conclusive, absent manifest error or fraud. The final, binding and conclusive Closing Statement based either upon agreement by the Dispute is first submitted parties, or deemed agreement by Buyer and the Stockholders’ Representative in accordance with this Section 2.14, or the written determination delivered by the Neutral Arbitrator in accordance with this Section 2.14(c) will be the “Conclusive Closing Statement.” Neither any Stockholder, holder of Company Stock Options, holder of Company RSUs nor the Stockholders’ Representative shall have any liability with respect to Funded Indebtedness, Closing Date Funded Indebtedness, Transaction Related Expenses, or current assets or current liabilities (including as to accounts receivable and the Accountants collectability thereof) or any other component of Net Working Capital except as determined in this Section 2.14, except that this sentence shall not limit a claim for a breach of a representation or warranty pursuant to Section 11.2(a) (but for the avoidance of doubt any liability under Section 2.14 or Damages under Section 11.2(a) may not be recovered more than once in respect of the same liability or Damages, as the case may be). All negotiations pursuant to this Section 2(e2.14(c) shall be treated as compromise and settlement negotiations for their consideration. Each Party agrees to promptly make available to each purposes of Rule 408 of the Federal Rules of Evidence and comparable other laws including state rules of evidence, and all negotiations, submissions to the Accountants all documentsNeutral Arbitrator, booksand dispute resolution proceedings under this Section 2.14(c) shall be treated as such. The Neutral Arbitrator shall be bound by a mutually agreeable confidentiality confidential information agreement. The procedures of this Section 2.14(c) are exclusive and, records and personnel under that Party’s control except as set forth below, the Accountants shall determine in their judgment to be necessary or relevant to their review determination of the Dispute Neutral Arbitrator shall be final and otherwise binding on the parties. The decision rendered pursuant to cooperate with the other parties and the Accountants to facilitate a prompt resolution of the Dispute; provided that nothing contained in this Section 2(e2.14(c) may be filed as a judgment in any court of competent jurisdiction. Either party may seek specific enforcement or take other necessary legal action to enforce any decision under this Section 2.14(c). The other party’s only defense to such a request for specific enforcement or other legal action shall require a Party be manifest error or fraud by or upon the Neutral Arbitrator. Absent such manifest error or fraud, such other party shall reimburse the party seeking enforcement for its expenses related to disclose any attorney-client privileged information to the extent that the disclosure thereof may result in the loss of attorney-client privilege by such Partyenforcement. (ivd) If Subject to Section 2.14(e): (i) if the Aggregate Common Equity Cash Amount is greater than the Final Closing Net Debt is different from the projected Net Debt amount as of the Closing Date (determined based on the Net Debt Statement in accordance with Exhibit E)Payment Amount, then the Merger Consideration will be adjusted following Stockholders’ Representative and Buyer shall instruct the Closing (the Merger Consideration following such adjustment, the “Final Merger Consideration”) and Acquiror or the Stockholders, as applicable, will Escrow Agent to pay to the other the aggregate amount Surviving Corporation, solely out of the excess or shortfall (after giving full credit for any adjustments made funds in the Adjustment Escrow Account, an amount in cash equal to the Merger Consideration amount by which the Aggregate Common Equity Cash Amount is greater than the Final Payment Amount; provided that, if such amount exceeds the funds in respect the Adjustment Escrow Account by greater than $500,000, the Surviving Corporation shall be entitled to recover such amount either from the Indemnity Escrow Account, or by way of Net Debt at Closing offset against any Contingent Payments pursuant to Section 2(d2.10(c)). Any payment ; and (ii) if the Aggregate Common Equity Cash Amount is less than the Final Payment Amount, Buyer shall pay to the Stockholders described in this Section 2(e)(iv) shall be made by Acquiror Paying Agent (for further pro rata distribution to the Stockholders Fully Diluted Common Holders, as set forth in Section 2.8) an amount in cash equal to the amount by which the Aggregate Common Equity Cash Amount is less than the Final Payment Amount by wire transfer of immediately available funds (the amount payable to Buyer pursuant to Section 2.14(d)(i) and the amount payable to the account designated by Paying Agent (for further pro rata distribution to the Stockholders Fully Diluted Common Holders) pursuant to this Section 2.14(d)(ii) are referred to herein as the “Merger Consideration Adjustment Amount”); provided, however, Buyer shall cause any such payment that is a Compensatory Payment to be promptly and in any event within five (5) Business Days paid from the relevant accounts of the date on which Company (or its Subsidiary) through the Post-Closing Net Debt Statement became final (and allocated among the Stockholders in accordance with the allocation method set forth in Section 2(a)(ii)). In the event of any delay in payment by Acquiror payroll system of the amount required by this Section 2(e)(ivCompany (or its Subsidiary) beyond five (5) Business Days after to the Post-Closing Net Debt Statement became finalapplicable Person to whom such payments are to be made, the Stockholders also will be entitled subject to receive interest on the unpaid amount from any applicable deductions or withholding Taxes applicable to such fifth Business Day at 10% per annum, compounding monthly, until all amounts owing hereunder have been paid in fullpayments. Any payment to Acquiror as described in the first sentence For purposes of this Section 2(e)(iv) shall be effected by Acquiror canceling the applicable number of shares of its common stock (determined based on the Value Per Share, rounded to the nearest whole number of shares) that it delivered to the Stockholders at Closing.2.14:

Post-Closing Merger Consideration Adjustment. Following the Closing Date, the Merger Consideration will be adjusted, if at all, as set forth below: (ia) Within sixty ninety (6090) days after the Closing Date, Buyer shall cause to be prepared and delivered to Shareholders’ Representative a certificate signed by a duly authorized officer of Buyer attaching (i) the Stockholders consolidated balance sheet of the Company and the related statements of income and Shareholders’ capital and statement of cash flows as of the Closing Date prepared in accordance with GAAP (without giving effect to the transactions contemplated herein), and (ii) a statement (the “Closing Statement”) including Buyer’s calculation of (A) the Closing Net Working Capital (including each component item thereof calculated in accordance with the manner of calculation reflected in Schedule 1.05 attached hereto), (B) the Closing Indebtedness, (C) the Transaction Expenses (D) the resulting Closing Net Working Capital Surplus or Closing Net Working Capital Shortfall (as applicable) and the Post-Closing Adjustment (as defined herein), (E) Cash and (F) Buyer’s calculation of the Final Merger Consideration derived from the foregoing. The Post-Closing Adjustment shall prepare and deliver be an amount equal to Acquiror an update of the Closing Net Working Capital Surplus (if any) minus the Estimated Net Working Capital Surplus (if any) plus the Estimated Net Working Capital Shortfall (if any) minus the Closing Net Working Capital Shortfall (if any) plus the Estimated Closing Net Debt Statement Indebtedness minus the Closing Indebtedness plus the Estimated Transaction Expenses minus the Closing Transaction Expenses plus the Estimated Cash minus the Cash (the “Post-Closing Net Debt StatementAdjustment”) setting forth the Net Debt of the Companies and the Designated Subsidiaries (presented as if they were one consolidated entity as of immediately following Closing) as of 11:59 p.m (EST) on the Business Day immediately prior to the Closing Date (Net Debt, as it may be adjusted pursuant to this Section 2(e), the “Final Closing Net Debt”). Without limiting any other rights and remedies that may be applicable, in the event of a breach of any covenant set forth in clause (y) of Section 5(a)(i) that would otherwise reduce the Final Closing Net Debt as of such day, the Final Closing Net Debt shall be calculated as though such breach had not occurred. Acquiror agrees to provide the Stockholders and their representatives with reasonable access to the properties and books and records of each of Surviving Entities and the Designated Subsidiaries and the personnel responsible therefor or otherwise involved in the preparation thereof and otherwise to cooperate with the Stockholders and their representatives as they may reasonably request in connection with the preparation of the Post-Closing Net Debt Statement. (ii) The Post-Closing Net Debt Statement will become final and binding upon the Parties at 5:00 p.m. (EST) on the thirtieth (30th) day following the Stockholders’ delivery thereof unless Acquiror gives the Stockholders written notice of a good faith disagreement with any amount or computation thereof (the “Notice of Disagreement”) prior to such date and time. The Notice of Disagreement shall set forth Acquiror’s good faith determination of the Final Closing Net Debt and specify, in reasonable detail, the nature of any disagreement with the Stockholders’ determination. If a Notice of Disagreement is received by the Stockholders in a timely mannerprovided that, the Post-Closing Net Debt Statement Adjustment shall in no way be affected, modified or adjusted by Buyer’s Independent Investigation (as adjusted, as applicable, pursuant to this Section 2(edefined herein) to reflect final resolution of differences, if any, between the Parties) will become final and binding upon the Parties as of the earlier of (x) the date on which the Parties resolve in writing all differences they have with respect conducted prior to the matters specified in the Notice of Disagreement and (y) the date on which all such differences are resolved by a determination of the Accountants as described in clause (iii) belowClosing, including but not limited to, inventory reserves. (iiib) During Shareholders’ Representative shall have thirty (30) days following Shareholders’ Representative’s receipt of the Closing Statement to review and analyze Buyer’s calculations set forth therein. If Shareholders’ Representative concurs with such calculation or shall not object thereto in a writing delivered to Buyer within the aforesaid thirty (30) day period, Bxxxx’s calculation of the Closing Net Working Capital shall become final, binding and conclusive on the parties hereto and shall not be subject to further review, challenge or adjustment. If Shareholders’ Representative does not agree with Bxxxx’s calculation and notifies Buyer of such objection in writing within the aforesaid thirty (30) day period following with a statement containing reasonable detail as to the receipt basis for all objection(s) (the “Statement of the Notice of DisagreementObjections”), the Stockholders Buyer and Acquiror Shareholders’ Representative shall seek work in good faith for a period of thirty (30) days thereafter (or such longer period as they may mutually agree) (the “Agreement Period”) to agree upon such calculation. (c) If Shareholders’ Representative and Buyer fail to reach an agreement with respect to all of the matters set forth in the Statement of Objections before expiration of the Agreement Period, then any amounts remaining in dispute (“Disputed Amounts”) shall be submitted for resolution to a Neutral Auditor mutually appointed by Bxxxx and Shareholders’ Representative who, acting as experts and not arbitrators, shall resolve the matter(s) specified Disputed Amounts only and make any adjustments to the Post-Closing Adjustment, as the case may be, and the Closing Statement. The parties hereto agree that all adjustments shall be made without regard to materiality. The Neutral Auditor shall only decide the specific items under dispute by the parties and their decision for each Disputed Amount must be within the range of values assigned to each such item in the Notice Closing Statement and the Statement of DisagreementObjections, respectively. If, by If Buyer and Shareholders’ Representative are unable to agree on the expiry selection of that thirty-day period, the Stockholders and Acquiror have not reached an agreement on all such matters then, Neutral Auditor within ten (10) Business Days from days after the end expiration of the thirtyAgreement Period, then within twenty (20) days after the expiration of the Agreement Period, Buyer and Shareholders’ Representative shall each select an independent certified public accounting firm and such two (2) firms shall, within twenty-day periodfive (25) days after the expiration of the Agreement Period, select the Parties shall submit all matters that remain in dispute (Neutral Auditor. Such calculation by the “Dispute”) to the Accountants for sole and final review and resolution as the Accountants determine to be appropriate. With respect to each disputed item or amount, the Accountants shall adopt a position that is equal to Acquiror’s proposed position, equal to the Stockholders proposed position, or between the positions proposed by Acquiror and the Stockholders. The Accountants shall establish the process of reviewing any Dispute, but Neutral Auditor shall be directed by final, binding and conclusive on the Parties parties hereto and shall not be subject to provide their final determination further review, challenge or adjustment. Each party hereto shall pay its own costs and expenses incurred in connection with respect to any Dispute as soon as practicable and in any event within thirty (30) days following the date on which the Dispute is first submitted to the Accountants pursuant to this Section 2(e1.08(c); provided, however, that Shareholders’ Representative and Buyer shall each pay one-half (1/2) for their consideration. Each Party agrees to promptly make available to each other and to the Accountants all documents, books, records and personnel under that Party’s control as the Accountants shall determine in their judgment to be necessary or relevant to their review of the Dispute fees, costs and otherwise to cooperate with the other parties and the Accountants to facilitate a prompt resolution expenses of the Dispute; provided that nothing contained in this Section 2(e) shall require a Party to disclose any attorney-client privileged information to the extent that the disclosure thereof may result in the loss of attorney-client privilege by such PartyNeutral Auditor. (ivd) If Final In the event the Post-Closing Net Debt Adjustment is different from the projected Net Debt amount as of the Closing Date (determined based on the Net Debt Statement in accordance with Exhibit E)a negative number, then the Merger Consideration will be adjusted following the Closing (the Merger Consideration following such adjustment, the “Final Merger Consideration”) and Acquiror or the Stockholders, as applicable, will pay to the other the aggregate amount of the excess or shortfall (after giving full credit for any adjustments made to the Merger Consideration in respect of Net Debt at Closing pursuant to Section 2(d)). Any payment to the Stockholders described in this Section 2(e)(iv) shall be made by Acquiror to the Stockholders in cash by wire transfer of immediately available funds to the account designated by the Stockholders promptly and in any event within five (5) Business Days of the date on Determination Date (as defined below), Buyer and Shareholders’ Representative shall submit joint written instructions to the Escrow Agent to release from the Closing Adjustment Escrow Account (i) to Buyer, an amount by which the Post-Closing Net Debt Statement became final Adjustment is less than $0 (up to the amount then remaining in the Closing Adjustment Escrow Account) and allocated among (ii) to the Stockholders Key Shareholders as directed by the Shareholders’ Representative, any amounts then remaining in accordance with the allocation method set forth in Section 2(a)(iiClosing Adjustment Escrow Account (after reduction pursuant to the foregoing clause (i)). In If the event of any delay in payment by Acquiror amount to be paid to Buyer pursuant to clause (i) of the previous sentence exceeds the Closing Adjustment Escrow Amount, the Key Shareholders shall pay Buyer such amount required in excess of the Closing Adjustment Escrow Amount by this Section 2(e)(iv) beyond wire transfer of immediately available funds to such account as is directed by Buyer within five (5) Business Days after of the Determination Date, or, at Buyer’s option, Buyer and Shareholders’ Representative shall submit joint written instructions to the Escrow Agent to release from the Retention Escrow Account to Buyer such amount in excess of the Closing Adjustment Escrow Amount. In the event the Post-Closing Net Debt Statement became finalAdjustment is a positive number, then within five (5) Business Days of the Stockholders also will be entitled to receive interest on the unpaid amount from such fifth Business Day at 10% per annumDetermination Date, compounding monthly, until all amounts owing hereunder have been paid in full. Any payment to Acquiror as described in the first sentence of this Section 2(e)(iv) shall be effected by Acquiror canceling the applicable number of shares of its common stock (determined based on the Value Per Share, rounded to the nearest whole number of shares) that it delivered to the Stockholders at Closing.Buyer and Shareholders’

Post-Closing Merger Consideration Adjustment. (ia) Within sixty (60) days after the Closing Date, the Stockholders The Merger Consideration shall prepare and deliver to Acquiror an update of the Estimated Closing Net Debt Statement be adjusted on a dollar-for-dollar basis (the “Post-Closing Net Debt Statement”"Adjustment") setting forth the Net Debt of the Companies and the Designated Subsidiaries (presented as if they were one consolidated entity as of immediately following Closing) as of 11:59 p.m (EST) on the Business Day immediately prior to the Closing Date (Net Debt, as it may be adjusted pursuant to this Section 2(e), the “Final Closing Net Debt”). Without limiting any other rights and remedies that may be applicable, in the event of a breach of any covenant set forth in clause (y) of Section 5(a)(i) that would otherwise reduce the Final Closing Net Debt as of such day, the Final Closing Net Debt shall be calculated as though such breach had not occurred. Acquiror agrees to provide the Stockholders and their representatives with reasonable access to the properties and books and records of each of Surviving Entities and the Designated Subsidiaries and the personnel responsible therefor or otherwise involved in the preparation thereof and otherwise to cooperate with the Stockholders and their representatives as they may reasonably request in connection with the preparation of the Post-Closing Net Debt Statement. (ii) The Post-Closing Net Debt Statement will become final and binding upon the Parties at 5:00 p.m. (EST) on the thirtieth (30th) day following the Stockholders’ delivery thereof unless Acquiror gives the Stockholders written notice of a good faith disagreement with any amount or computation thereof (the “Notice of Disagreement”) prior to such date and time. The Notice of Disagreement shall set forth Acquiror’s good faith determination of the Final Closing Net Debt and specify, in reasonable detail, the nature of any disagreement with the Stockholders’ determination. If a Notice of Disagreement is received by the Stockholders in a timely manner, the Post-Closing Net Debt Statement (as adjusted, as applicable, pursuant to this Section 2(e) to reflect final resolution of differences, if any, between the Parties) will become final and binding upon the Parties as of the earlier of (x) the date on which the Parties resolve in writing all differences they have with respect to the matters specified in the Notice of Disagreement and (y) the date on which all such differences are resolved by a determination of the Accountants as described in clause (iii) below. (iii) During the thirty (30) day period following the receipt of the Notice of Disagreement, the Stockholders and Acquiror shall seek in good faith to resolve the matter(s) specified in the Notice of Disagreement. If, by the expiry of that thirty-day period, the Stockholders and Acquiror have not reached an agreement on all such matters then, within ten (10) Business Days from the end of the thirty-day period, the Parties shall submit all matters that remain in dispute (the “Dispute”) to the Accountants for sole and final review and resolution as the Accountants determine to be appropriate. With respect to each disputed item or amount, the Accountants shall adopt a position that is equal to Acquiror’s proposed position, equal to the Stockholders proposed position, or between the positions proposed by Acquiror and the Stockholders. The Accountants shall establish the process of reviewing any Dispute, but shall be directed by the Parties to provide their final determination with respect to any Dispute as soon as practicable and in any event within thirty (30) days following the date on which the Dispute is first submitted to the Accountants pursuant to this Section 2(e) for their consideration. Each Party agrees to promptly make available to each other and to the Accountants all documents, books, records and personnel under that Party’s control as the Accountants shall determine in their judgment to be necessary or relevant to their review of the Dispute and otherwise to cooperate with the other parties and the Accountants to facilitate a prompt resolution of the Dispute; provided that nothing contained in this Section 2(e) shall require a Party to disclose any attorney-client privileged information to the extent that the disclosure thereof may result in the loss of attorney-client privilege by such Party. (iv) If Final Closing Net Debt Worth (defined below) is different from less than $66.0 million. Ernst & Young LLP (the projected Net Debt amount "Seller's Accountant") shall perform by June 15, 2000 a review of the balance sheet of the Company as of the Closing Date (determined based on the Net Debt Statement in accordance with Exhibit E), then the Merger Consideration will be adjusted following the "Closing (the Merger Consideration following such adjustment, the “Final Merger Consideration”Balance Sheet") and Acquiror or the Stockholders, as applicable, will pay to the other the aggregate amount of the excess or shortfall (after giving full credit for any adjustments made to the Merger Consideration in respect of Net Debt at Closing pursuant to Section 2(d)). Any payment to the Stockholders described in this Section 2(e)(iv) shall be made by Acquiror to the Stockholders in cash by wire transfer of immediately available funds to the account designated by the Stockholders promptly and in any event within five (5) Business Days of the date on which the Post-Closing Net Debt Statement became final (and allocated among the Stockholders in accordance with the allocation method AICPA Statement of Standards for Accounting and Review Services (SSARS) #1 and issue a report thereon. The Closing Balance Sheet shall be prepared by the Company in accordance with GAAP, consistent with past practices. Using the financial statements upon which the Seller's Accountant performed the SSARS #1 review, the Seller's Accountant shall also prepare a special procedures report in accordance with Statement of Auditing Standards #75 which shall set forth a calculation of "Closing Net Worth" in accordance with this Agreement. The Seller's Accountant shall deliver the Closing Net Worth calculation and such computation to both Buyer and the Holders' Representative, and promptly after its receipt of such computation, the Buyer shall give the Holders' Representative notice (the "Adjustment Notice") of any proposed Adjustment (the "Proposed Adjustment") unless the Buyer gives a Dispute Notice in accordance with Section 2(a)(ii)2.14(b). In the event of any delay in payment by Acquiror of the amount required by this Section 2(e)(iv) beyond five (5) Business Days after the Post-Closing Net Debt Statement became final, the Stockholders The Buyer shall also will be entitled to access to all work papers and all other supporting accounting documents of the Seller's Accountant related to such determinations. In addition, the Buyer and Buyer's accountant, PricewaterhouseCoopers LLP, shall be entitled to ask questions, receive answers and request such other data and information from the Seller's Accountant as shall be reasonable under the circumstances. "Closing Net Worth" means, as of the Closing Date, the total Assets of the Company minus the total Liabilities of the Company (excluding the Total Debt and deferred financing fees). The Adjustment, if any, shall earn interest from the Closing Date until the Settlement Date, as defined below, at a rate equal to the short-term AFR rate published in the Wall Street Journal on the unpaid amount from such fifth Business Day at 10% per annum, compounding monthly, until all amounts owing hereunder have been paid in full. Any payment to Acquiror as described in the first sentence of this Section 2(e)(iv) shall be effected by Acquiror canceling the applicable number of shares of its common stock (determined based on the Value Per Share, rounded to the nearest whole number of shares) that it delivered to the Stockholders at ClosingClosing Date.