Common use of Post-Closing Payments Clause in Contracts

Post-Closing Payments. (a) Subject to Section 12.1, on the Post-Closing Payment Date, Buyer shall pay or cause to be paid to Seller, in immediately available funds to an account designated by Seller, the amount of $8,000,000, plus (1) the Positive Total Equity Adjustment, if any, minus (2) the Negative Total Equity Adjustment, if any, minus (3) if the Litigation Claim has not become a Final Claim as of the Post-Closing Payment Date, the Holdback, plus (4) an amount equal to ten percent (10%) of the sum of the Unsold Inventory and Delinquent Accounts Receivable (such amount in this clause (4), the "Sludge Amount"), minus (5) one-half of the fees and expenses of the Independent Accountant paid pursuant to Section 3.5(d), minus (6) the filing fees contemplated by Section 8.16, minus (7) an amount equal to any pending indemnification claims pursuant to Section 12.1(f), minus (8) one-half of the fees and expenses of the Auditors; provided, however that Seller may elect by prompt written notice to Buyer to forego some or all of the payment required by clause (4) above and, upon such election, Buyer, at Seller's expense, shall cause the Company to (i) assign all rights, title and interest to the applicable Unsold Inventory and/or Delinquent Accounts Receivable to Seller on the Post- Closing Payment Date, (ii) deliver any such Unsold Inventory to Seller within 90 days following the Post-Closing Payment Date. Buyer agrees that if it breaches its obligation to make the payments required by this Section 3.4(a) when due and owing, such payment shall accrue interest from the Post Closing Payment Date until full satisfaction of such payment obligation at an interest rate equal to the U.S. prime rate of the Royal Bank of Canada plus 2% (calculated daily). (b) If the Litigation Claim has not become a Final Claim as of the Post-Closing Payment Date, Buyer and Seller shall establish with the Escrow Agent an escrow account, and Buyer shall deposit an amount (the "Holdback") equal to the lesser of (i) $4,200,000 and (ii) $8,000,000, minus the Negative Total Equity Adjustment, if any, plus, the Sludge Amount, with the Escrow Agent, which shall be held pursuant to an escrow agreement in the form attached hereto as Exhibit C (the "Holdback Escrow Agreement"). (c) If the Litigation Claim has become a Final Claim on or before the Post-Closing Payment Date, Buyer shall not subtract the Holdback from any payments required to be made to Seller pursuant to Section 3.4(a). (d) On or before the Post-Closing Payment Date, Buyer shall cause the Company to pay Seller, in immediately available funds to an account designated by Seller, the amount due pursuant to Section 8.15. (e) Following the final adjudication or settlement of each pending indemnification claim pursuant to Section 12.1 following the Post-Closing Payment Date, to the extent that Seller is not required to indemnify Buyer or the Company pursuant to Section 12.1, Buyer shall pay such amount withheld pursuant to Section 12.1(f) with respect to such pending claim to Seller in immediately available funds to an account designated by Seller.

Post-Closing Payments. Post-Closing Payments of $45,000,000, in the aggregate, contemplated by Section 2.2.2(b) will be payable by Buyer to Sellers' Representative, on behalf of Sellers based on their Percentage Ownership, on and subject to the applicable terms and conditions set forth above in this Agreement, including the following terms and conditions: (a) Subject to Section 12.1In respect of the First Post-Closing Year, on the Post-Closing Payment, if any, shall be calculated as follows: (i) $20,000,000 shall be payable if the EBITDA for the First Post-Closing Year exceeds $23,128,205 (the "Maximum Target for the First Post-Closing Year"); (ii) xxxx shall be payable if the EBITDA for the First Post-Closing Year is less than $18,000,000 (the "Minimum Target for the First Post-Closing Year"); or (iii) if the EBITDA for the First Post-Closing Year is between the Minimum Target for the First Post-Closing Year and the Maximum Target for the First Post-Closing Year, the amount payable shall be the amount by which EBITDA for the First Post-Closing Year exceeds the Minimum Target for the First Post-Closing Year multiplied by 3.9. (b) In respect of the Second Post-Closing Year (together with the First Post-Closing Year, the "Adjustment Years"), the Post-Closing Payment, if any, shall be calculated as follows: (i) $20,000,000 shall be payable if the EBITDA for the Second Post-Closing Year exceeds $26,028,205 (the "Maximum Target for the Second Post-Closing Year"); (ii) xxxx shall be payable if the EBITDA for the Second Post-Closing Year is less than $20,900,000 (the "Minimum Target for the Second Post-Closing Year"); or (iii) if the EBITDA for the Second Post-Closing Year is between the Minimum Target for the Second Post-Closing Year and the Maximum Target for the Second Post-Closing Year, the amount payable shall be the amount by which EBITDA for the Second Post-Closing Year exceeds the Minimum Target for the Second Post-Closing Year multiplied by 3.9. (c) In addition to any Post-Closing Payment Datepayable pursuant to Sections (a) and (b) of this Schedule 2.2.2(b), a Post-Closing Payment of $5,000,000 shall be payable within 60 days after the end of the first period, if any, of 12 consecutive calendar months entirely within the period commencing on January 1, 2014 and ending on December 31, 2015 (the "12-Month Period") for which the EBITDA for such 12-Month Period totaled at least $18,000,000 (the "Minimum Target" for such first 12-Month Period). (d) Notwithstanding anything herein to the contrary, (i) payment of the Post-Closing Payments will be subject to the terms and conditions of the Third Amended and Restated Business Loan and Security Agreement and (ii) any amount of the $45,000,000 in Post-Closing Payments that does not become payable under this Schedule 2.2.2(b) shall constitute a reduction in the US Purchase Price and Buyer shall will not be obligated to pay or cause to be paid to SellerSellers' Representative, in immediately available funds to an account designated by Selleron behalf of Sellers based on their Percentage Ownership, the amount of $8,000,000any such reduction. (e) Subject to the terms and conditions of this Schedule 2.2.2(b), plus each Post-Closing Payment payable hereunder shall be calculated and paid to Sellers' Representative, on behalf of Sellers based on the Percentage Ownership, within 90 days after the end of the Adjustment Year or, as the case may be, within 60 days after the end of the first 12-Month Period for which it was earned. No Post-Closing Payment shall be payable hereunder in respect of an Adjustment Year or any 12-Month Period if the EBITDA for such Adjustment Year or 12-Month Period is less than its respective Minimum Target set forth in Section (1a) of this Schedule 2.2.2(b). Buyer and Buyer's Parent shall provide to Sellers' Representative, in reasonable detail, (i) within 90 days after the Positive Total Equity Adjustmentlast day of the First Post-Closing Year, a statement of the EBITDA for the First Post-Closing Year and, if any, minus (2) the Negative Total Equity Adjustment, if any, minus (3) if the Litigation Claim has not become a Final Claim as statement of the Post-Closing Payment Datefor such Adjustment Year; (ii) within 90 days after the last day of the Second Post-Closing Year, a statement of the EBITDA for the Second Post-Closing Year and, if any, of the Post-Closing Payment for such Adjustment Year; (iii) within 30 days after the end of each month during the period commencing on December 1, 2014 and ending on December 31, 2015 a statement of the EBITDA for such month, provided that the Post-Closing Payment referenced in Section (c) of this Schedule 2.2.2(b) has not been previously paid and Buyer has not notified Sellers' Representative that such Post-Closing Payment is payable in respect of a previous 12-Month Period; and (iv) within 60 days after the last day of the first 12-Month Period, if any, for which the EBITDA for such period totaled at least $18 million, a statement of the EBITDA for such period. (i) Before the 46th day after the earlier of the date a Post-Closing Payment was due or paid pursuant to this Schedule 2.2.2(b), Sellers' Representative and its advisers (1) shall have access upon prior notice and during normal business hours to the books, papers and records of the Post-Closing Payment Companies and their accountants (if any are used) relating to the calculation of the Post-Closing Payment for the preceding Adjustment Year or, in respect of Section (c) of this Schedule 2.2.2(b), 12-Month Period and (2) may conduct at Sellers' expense an examination of any Post-Closing Payment Company's books and records in respect of the calculation of the Post-Closing Payment for the preceding Adjustment Year, month or, as the case may be, 12-Month Period. (ii) Notwithstanding anything herein to the contrary, the Holdback, plus rights of access and examination set forth in Section (4) an amount equal to ten percent (10%f)(i) of this Schedule 2.2.2(b) shall terminate in respect of any Post-Closing Payment paid or payable pursuant to this Schedule 2.2.2 (b) on the sum 46th day after the earlier of the Unsold Inventory date such Post-Closing Payment was due or paid pursuant to this Schedule 2.2.2(b) except to the extent a Sellers' Objection has been provided pursuant to Section (g)(i) of this Schedule 2.2.2(b) and Delinquent Accounts Receivable the disagreement set forth therein has not yet been resolved. (i) The amount of or any Post-Closing Payment shall be final, binding and conclusive upon, and deemed accepted by, Sellers unless Sellers' Representative shall before the termination under Section (f) of this Schedule 2.2.2(b) of its rights of access and examination in respect of the Post-Closing Payment pursuant to Section (f)(i) of this Schedule 2.2.2(b), have notified Buyer's Parent in reasonable detail of any objections thereto, identifying the specific items involved and the dollar amount of each disagreement (the "Sellers' Objection"). After the later of (1) the 45th day after date on which Buyer's Parent has delivered its calculation of the respective EBITDA and Post-Closing Payment to Sellers' Representative and (2) the date of termination of the respective access and audit period in Section (f)(i) of this Schedule 2.2.2(b) in respect of the EBITDA and Post-Closing Payment, neither Buyer's Parent, Buyer nor Sellers' Representative may introduce additional disagreements with respect to the respective EBITDA or Post-Closing Payment or increase the amount of the disagreement, and any item not so identified shall be deemed to be agreed to by Buyer's Parent, Buyer and Sellers' Representative and will be final, binding and conclusive upon the Parties. (ii) If a Sellers' Objection is provided pursuant to Section (g)(i) of this Schedule 2.2.2(b), Buyer's Parent shall have 20 days to review and respond to such amount Sellers' Objection, and Buyer's Parent, Buyer and Sellers' Representative shall attempt to resolve the differences set forth in this the Sellers' Objection within 20 days following receipt of the Sellers' Objection by Buyer's Parent. Disputes between Buyer's Parent and Sellers' Representative that are not resolved by them within such 20-day period shall be referred no later than such 20th day for decision to (1) the Arbiter, if any, selected pursuant to Section 2.2.4.3 and, (2) if no such Arbiter had been selected, an independent accounting firm or valuation firm of national reputation mutually acceptable to Buyer's Parent and Sellers' Representative (whether pursuant to clause (41) or (2), the "Sludge AmountPost-Closing Payment Arbiter"), minus who shall act as arbitrator and determine, whether and to what extent, if any, the respective Post-Closing Payment requires adjustment, based solely on presentations by Sellers' Representative and Buyer's Parent and only with respect to the remaining differences so submitted. If Buyer's Parent and Sellers' Representative cannot agree upon the selection of the Post-Closing Payment Arbiter within five Business Days, BDO USA LLP shall serve as the Post-Closing Payment Arbiter hereunder. The Post-Closing Payment Arbiter shall deliver to Buyer's Parent and Sellers' Representative its written determination as to whether and to what extent, if any, the respective Post-Closing Payment requires adjustment no later than the 30th day after the remaining differences underlying the Sellers' Objection are referred to the Post-Closing Payment Arbiter, or such longer period of time as the Post-Closing Payment Arbiter determines is necessary. The Post-Closing Payment Arbiter's determination pursuant to this Section (5g)(ii) one-half shall be final, conclusive and binding upon the Parties, absent manifest error in the factual basis or application of the relevant or controlling accounting principles. Buyer's Parent on one hand and Sellers on the other hand shall each pay 50% of the fees and expenses of the Independent Accountant paid pursuant to Section 3.5(d), minus (6) the filing fees contemplated by Section 8.16, minus (7) an amount equal to any pending indemnification claims pursuant to Section 12.1(f), minus (8) onePost-half of the fees and expenses of the Auditors; provided, however that Seller may elect by prompt written notice to Buyer to forego some or all of the payment required by clause (4) above and, upon such election, Buyer, at Seller's expense, shall cause the Company to (i) assign all rights, title and interest to the applicable Unsold Inventory and/or Delinquent Accounts Receivable to Seller on the Post- Closing Payment Date, (ii) deliver any such Unsold Inventory Arbiter. Buyer and Sellers' Representative shall make readily available to Seller within 90 days following the Post-Closing Payment Date. Buyer agrees that if it breaches its obligation Arbiter all relevant information, books and records and any work papers relating to make the payments required by this Section 3.4(a) when due and owing, such payment shall accrue interest from the Post Post-Closing Payment Date until full satisfaction in dispute and all other items reasonably requested by the Post-Closing Payment Arbiter. In no event may the Post-Closing Payment Arbiter's resolution of such payment obligation at any difference be for an interest rate equal amount that is outside the range of Buyer's and Sellers' Representative's disagreement in respect to the U.S. prime rate of the Royal Bank of Canada plus 2% (calculated daily)Post-Closing Payment. (biii) If Each Post-Closing Payment shall become final, conclusive and binding upon the Litigation Claim has not become Parties upon the earliest of (1) Sellers' Representative's failure to provide a Final Claim as Sellers' Objection in respect of the Post-Closing Payment Date, Buyer and Seller shall establish with the Escrow Agent an escrow account, and Buyer shall deposit an amount (the "Holdback") equal to the lesser of (i) $4,200,000 and (ii) $8,000,000, minus the Negative Total Equity Adjustment, if any, plus, the Sludge Amount, with the Escrow Agent, which shall be held pursuant to an escrow agreement in the form attached hereto as Exhibit C (the "Holdback Escrow Agreement"). (c) If the Litigation Claim has become a Final Claim on or before the 45th day after the earlier of the date such Post-Closing Payment was due or paid pursuant to this Schedule 2.2.2(b), (2) the agreement between Buyer and Sellers' Representative with respect thereto, and (3) the decision by the Post-Closing Payment Date, Buyer shall not subtract the Holdback from Arbiter with respect to any payments required to be made to Seller pursuant to disputes under this Section 3.4(a(d). (dh) On or before Notwithstanding anything herein to the contrary, (1) if a Change of Control occurs during the First Post-Closing Year, the Post-Closing Payment Datepayable in respect of the First Post-Closing Year and in respect of the Second Post-Closing Year, Buyer pursuant to Sections (a) and (b) of this Schedule 2.2.2(b) shall cause be the Company to pay Seller, in immediately available funds to an account designated by Seller, maximum $20,000,000 for each of the amount due two Adjustment Years plus the $5,000,000 payable pursuant to Section 8.15. (ec) Following of this Schedule 2.2.2(b), or $45,000,000 in the final adjudication or settlement aggregate, and (2) if a Change of each pending indemnification claim pursuant to Section 12.1 following Control occurs during the Second Post-Closing Year, the Post-Closing Payment Date, to the extent that Seller is not required to indemnify Buyer or the Company payable pursuant to Section 12.1, Buyer shall pay such amount withheld pursuant to Section 12.1(f(b) of this Schedule 2.2.2(b) with respect to such pending claim to Seller the Second Post-Closing Year shall be the $20,000,000 maximum payment, and in either event the required Post-Closing Payment(s) shall be paid within 10 Business Days after the date on which the Change of Control occurs. Upon making the applicable Post-Closing Payments referenced in the immediately available funds to an account designated by Sellerpreceding sentence, all of Buyer's obligations under Section 2.2.2(b) and this Schedule 2.2.2(b) in respect of Post-Closing Payments shall terminate and be null and void. (i) For all purposes of this Schedule 2.2.2(b):

Post-Closing Payments. (ai) Subject to Section 12.1, on If the Post-Closing Adjustment Amount as finally determined pursuant to this Section 1.3 is negative (the absolute value of such negative amount, the “Post-Closing Deficit”), then Seller shall be obligated to pay Parent the Post-Closing Deficit. Payment Date, Buyer of any Post-Closing Deficit shall pay or cause to be paid to SellerParent, (A) first, from the Adjustment Escrow Fund (and not later than five Business Days following such final determination Parent and Seller shall provide a joint written instruction to the Escrow Agent to deliver to Parent an amount in immediately available funds cash equal to an account designated by Seller, the amount of $8,000,000, plus (1) the Positive Total Equity Adjustment, if any, minus (2) the Negative Total Equity Adjustment, if any, minus (3) if the Litigation Claim has not become a Final Claim as of the Post-Closing Payment DateDeficit from the Adjustment Escrow Fund or, the Holdback, plus (4) an amount equal to ten percent (10%) of the sum of the Unsold Inventory and Delinquent Accounts Receivable (such amount in this clause (4), the "Sludge Amount"), minus (5) one-half of the fees and expenses of the Independent Accountant paid pursuant to Section 3.5(d), minus (6) the filing fees contemplated by Section 8.16, minus (7) an amount equal to any pending indemnification claims pursuant to Section 12.1(f), minus (8) one-half of the fees and expenses of the Auditors; provided, however that Seller may elect by prompt written notice to Buyer to forego some or all of the payment required by clause (4) above and, upon such election, Buyer, at Seller's expense, shall cause the Company to (i) assign all rights, title and interest to the applicable Unsold Inventory and/or Delinquent Accounts Receivable to Seller on the Post- Closing Payment Date, (ii) deliver any such Unsold Inventory to Seller within 90 days following if the Post-Closing Payment Date. Buyer agrees that if it breaches its obligation to make Deficit is greater than the payments required by this Section 3.4(a) when due and owingAdjustment Escrow Fund, such payment shall accrue interest from the Post Closing Payment Date until full satisfaction of such payment obligation at an interest rate amount in cash equal to the U.S. prime rate of entire Adjustment Escrow Fund) and (B) second, to the Royal Bank of Canada plus 2% (calculated daily). (b) If extent that the Litigation Claim has not become a Final Claim as Post-Closing Deficit is greater than the Adjustment Escrow Fund, the excess amount of the Post-Closing Payment DateDeficit over the Adjustment Escrow Fund from Seller. For avoidance of doubt, Buyer and Seller any recovery of any such Post-Closing Deficit shall establish with not be subject to any of the Escrow Agent an escrow account, and Buyer shall deposit an amount (the "Holdback") equal to the lesser of (i) $4,200,000 and limitations on indemnification set forth in Section 6.3. (ii) $8,000,000, minus the Negative Total Equity Adjustment, if any, plus, the Sludge Amount, with the Escrow Agent, which shall be held pursuant to an escrow agreement in the form attached hereto as Exhibit C (the "Holdback Escrow Agreement"). (c) If the Litigation Claim has become a Final Claim on or before the Post-Closing Payment Date, Buyer shall not subtract the Holdback from any payments required to be made to Seller Adjustment Amount as finally determined pursuant to this Section 3.4(a1.3 is positive (the “Post-Closing Surplus”). (d) On or before , then Parent shall pay Seller the Post-Closing Payment Date, Buyer shall cause the Company to pay Seller, in Surplus by wire transfer of immediately available funds to an the account designated in writing by Seller, the amount due pursuant to Section 8.15Seller for such purpose not later than five Business Days following such designation. (eiii) Following If, following the final adjudication or settlement determination of each pending indemnification claim pursuant to Section 12.1 following the Post-Closing Payment Date, Adjustment Amount pursuant to the extent this Section 1.3 and any payments that Seller is not may be required to indemnify Buyer or the Company pursuant to Section 12.11.3(e)(i), Buyer the Adjustment Escrow Fund has not been exhausted, not later than 10 Business Days following such final determination Parent and Seller shall pay such amount withheld pursuant provide a joint written instruction to Section 12.1(f) with respect the Escrow Agent to such pending claim deliver to Seller any amounts remaining in immediately available funds to an account designated by Sellerthe Adjustment Escrow Fund.

Post-Closing Payments. (a) Subject Seller may be entitled to additional payments from Buyer pursuant to the terms of this Section 2.7 in the form of shares of Buyer Stock as additional consideration for the Assets and the assumption of the Assumed Liabilities (any such additional payments, including any cash payment made in lieu of the issuance of Buyer Stock pursuant to Section 12.12.7(e), on the being referred to herein as “Post-Closing Payments”). The Closing Payment, as so adjusted by Section 2.9, together with the Escrow Amount, as so adjusted by Section 2.8, and any Post-Closing Payments, are referred to herein as the “Purchase Price”. (b) On the First Payment Date, Buyer or Buyer’s agent shall pay issue to Seller the First Payment Shares. Notwithstanding the foregoing, in the event that prior to the First Payment Date, one or cause more Key Employees cease to be employed by Buyer or its Affiliate as a result of a Bad Leaver Event (each such Key Employee, a “Bad Leaver”), then the First Payment Consideration Amount shall be reduced by an amount equal to (i) $6.5 million if Xxxxx Xxxxxx is a Bad Leaver, (ii) $13.0 million if Xxxxx Xxxxxx is a Bad Leaver, (iii) $13.0 million if Xxxxxx Xxxxxx is a Bad Leaver, and (iv) $0.0 million if Xxxx Xxxxxxxx is a Bad Leaver. For the avoidance of doubt, if more than one Key Employee is a Bad Leaver, the reductions shall be aggregated. Additionally, if the First Payment Date occurs on a date that is prior to the date that amounts may become payable under the TPP in respect of the First TPP Pool, then, the following adjustments shall be made in order to give effect to the intent of the parties to reduce the number of First Payment Shares issuable to Seller on the First Payment Date by the amounts that are actually paid under the TPP in respect of the First TPP Pool (“First TPP Payment”): (i) the First Payment Consideration Amount used to Sellercalculate the number of First Payment Shares issuable to Seller on the First Payment Date shall be reduced by the maximum amount that could potentially thereafter become payable under the TPP (inclusive of payroll taxes) on its First Payment Date (the “Maximum First Payment”), (ii) immediately following the First Payment Date, the First Payment Consideration Amount will be increased by such amount as results by subtracting the First TPP Payment from the Maximum First Payment (such amount, the “First TPP Forfeited Amount”), and (iii) within ten (10) business days following the First Payment Date (the “Final Settlement Date”) Buyer will issue Seller an additional number of shares of Buyer Stock with a then current fair market value equal to any First TPP Forfeited Amount, as calculated using the average of the market closing prices of Buyer Stock reported by Nasdaq on each of the three trading days immediately prior to such Final Settlement Date. (c) On the Second Payment Date, Buyer or Buyer’s agent shall issue to Seller the Second Payment Shares. Notwithstanding the foregoing, in immediately available funds the event that prior to the Second Payment Date, one or more Key Employees is a Bad Leaver, then the Second Payment Consideration Amount shall be reduced by an account designated by Selleramount equal to (i) $6.5 million if Xxxxx Xxxxxx is a Bad Leaver, (ii) $13.0 million if Xxxxx Xxxxxx is a Bad Leaver, (iii) $13.0 million if Xxxxxx Xxxxxx is a Bad Leaver, and (iv) $0.0 million if Xxxx Xxxxxxxx is a Bad Leaver. For the avoidance of doubt, if more than one Key Employee is a Bad Leaver, the amount reductions shall be aggregated and be in addition to any reductions in Post-Closing Payments pursuant to Section 2.7(b). Additionally, if the Second Payment Date occurs on a date that is prior to the date that amounts may become payable under the TPP in respect of $8,000,000the Second TPP Pool, plus then, the following adjustments shall be made in order to give effect to the intent of the parties to reduce the number of Second Payment Shares issuable to Seller on the Second Payment Date by the amounts that are actually paid under the TPP in respect of the Second TPP Pool (1“Second TPP Payment”): (i) the Positive Total Equity AdjustmentSecond Payment Consideration Amount used to calculate the number of Second Payment Shares issuable to Seller on the Second Payment Date shall be reduced by the maximum amount that could potentially thereafter become payable under the TPP (inclusive of payroll taxes) on its Second Payment Date (the “Maximum Second Payment”), (ii) immediately following the Second Payment Date, if anythe Second Payment Consideration Amount will be increased by such amount as results by subtracting the a Second TPP Payment from the Maximum Second Payment (such amount, minus the “Second TPP Forfeited Amount”), and (2iii) within ten (10) business days following the Negative Total Equity AdjustmentSecond Payment Date (the “Final Settlement Date”) Buyer will issue Seller an additional number of shares of Buyer Stock with a then current fair market value equal to any Second TPP Forfeited Amount, if anyas calculated using the average of the market closing prices of Buyer Stock reported by Nasdaq on each of the three trading days immediately prior to such Final Settlement Date. (d) If one or more Key Employees cease to be employed by Buyer or its Affiliate as a result of a Good Leaver Event, minus such departing Key Employee shall not be considered a Bad Leaver. If there is a dispute as to whether such departure is a Good Leaver Event or Bad Leaver Event, such disputes shall be resolved in accordance with Section 9.10. (3e) if Notwithstanding the Litigation Claim has not become a Final Claim as foregoing provisions of this Section 2.7, at Buyer’s election, Buyer may pay some or all of the Post-Closing Payment Date, the Holdback, plus (4) an amount equal to ten percent (10%) Payments in cash instead of the sum of the Unsold Inventory and Delinquent Accounts Receivable (such amount in this clause (4), the "Sludge Amount"), minus (5) one-half of the fees and expenses of the Independent Accountant paid pursuant to Section 3.5(d), minus (6) the filing fees contemplated by Section 8.16, minus (7) an amount equal to any pending indemnification claims pursuant to Section 12.1(f), minus (8) one-half of the fees and expenses of the Auditors; provided, however that Seller may elect by prompt written notice to Buyer to forego some or all of the payment required by clause (4) above and, upon such election, Buyer, at Seller's expense, shall cause the Company to (i) assign all rights, title and interest to the applicable Unsold Inventory and/or Delinquent Accounts Receivable to Seller on the Post- Closing Payment Date, (ii) deliver any such Unsold Inventory to Seller within 90 days following the Post-Closing Payment Date. Buyer agrees that if it breaches its obligation to make the payments required by this Section 3.4(a) when due and owing, such payment shall accrue interest from the Post Closing Payment Date until full satisfaction of such payment obligation at an interest rate equal to the U.S. prime rate of the Royal Bank of Canada plus 2% (calculated daily)Stock. (bf) If Following the Litigation Claim has not become a Final Claim as of Closing Date and through the Post-Closing Second Payment Date, Buyer will operate the Business based upon the business requirements of Buyer and its Affiliates taken as a whole, as determined by Buyer in its sole discretion. Nothing in this Agreement shall be deemed to restrict in any manner Buyer from making, at any time during such period, changes in its sole discretion to the operations, organization, personnel, accounting practices and other aspects of the Business, including changes or other actions that may have an impact on the achievement of the First Acceleration Event or Second Acceleration Event, and neither Seller nor any other Person shall establish have any right to claim any lost payments under this Agreement or other damages as a result of such changes or other actions so long as they are not made or taken in bad faith with the Escrow Agent an escrow account, and Buyer shall deposit an amount (the "Holdback") equal to the lesser principal purpose of (i) $4,200,000 and (ii) $8,000,000, minus the Negative Total Equity Adjustment, if any, plus, the Sludge Amount, with the Escrow Agent, which shall reducing amounts that would otherwise be held pursuant to an escrow agreement in the form attached hereto as Exhibit C (the "Holdback Escrow Agreement"). (c) If the Litigation Claim has become a Final Claim on or before the Post-Closing Payment Date, Buyer shall not subtract the Holdback from any payments required to be made owed to Seller pursuant to Section 3.4(a)hereunder. (d) On or before the Post-Closing Payment Date, Buyer shall cause the Company to pay Seller, in immediately available funds to an account designated by Seller, the amount due pursuant to Section 8.15. (e) Following the final adjudication or settlement of each pending indemnification claim pursuant to Section 12.1 following the Post-Closing Payment Date, to the extent that Seller is not required to indemnify Buyer or the Company pursuant to Section 12.1, Buyer shall pay such amount withheld pursuant to Section 12.1(f) with respect to such pending claim to Seller in immediately available funds to an account designated by Seller.

Post-Closing Payments. (ai) Subject If the Adjustment Amount is zero or if Additional Merger Consideration is determined to be due in accordance with this Section 12.12.8, then, within five (5) Business Days after the Conclusive Date, (A) the parties shall provide a joint written instruction to the Escrow Agent to deliver promptly from the Escrow Account by wire transfer to the Paying Agent, on behalf of and as agent of the Post-Closing Payment Stockholders (including, for the avoidance of doubt, the holders of Contributed Shares and Contributed Options), an amount in cash equal to the balance in the Escrow Fund and (B) Parent shall deliver promptly by wire transfer to the Paying Agent an amount in cash equal to the Additional Merger Consideration, if greater than zero. The Paying Agent shall promptly pay to each Stockholder (including, for the avoidance of doubt, the holders of Contributed Shares and Contributed Options) its applicable Per Share Portion of such amounts referenced in clauses (A) and (B) above. (ii) If there is an Excess Amount determined to be due in accordance with this Section 2.8 that is less than or equal to the balance in the Escrow Fund then, within five (5) Business Days after the Conclusive Date, Buyer the parties shall provide a joint written instruction to the Escrow Agent to deliver promptly from the balance in the Escrow Fund by wire transfer (A) to Parent, the Excess Amount and (B) to the Paying Agent an amount in cash equal to, if greater than zero, (x) the balance in the Escrow Fund minus (y) the Excess Amount. The Paying Agent shall promptly pay or cause the Per Share Portion of the amount referenced in clause (B) above to each Stockholder (including, for the avoidance of doubt, the holders of Contributed Shares and Contributed Options). (iii) If there is an Excess Amount determined to be paid due in accordance with this Section 2.8 that is greater than the balance in the Escrow Fund then, within five (5) Business Days after the Conclusive Date, (A) the parties shall provide a joint written instruction to Sellerthe Escrow Agent to deliver promptly from the Escrow Account by wire transfer to Parent all the funds then in the Escrow Account and (B) each Stockholder (including, in immediately available funds for the avoidance of doubt, the holders of Contributed Shares and Contributed Options) shall, with respect to an account designated each share of Company Common Stock or Option exchanged pursuant to the Merger, pay by Seller, wire transfer to Parent the Per Share Portion of (x) the Excess Amount minus (y) the amount of $8,000,000the Escrow Fund transferred to Parent. For the avoidance of doubt, plus the respective obligations of the Stockholders (1including, for the avoidance of doubt, the holders of Contributed Shares and Contributed Options) to make the Positive Total Equity Adjustmentpayment required pursuant to the foregoing clause (B) of this Section 2.8(g)(iii) shall be several and not joint. Each Letter of Transmittal delivered by a Stockholder in connection with the Merger pursuant to Section 2.6(c) shall include an agreement to be bound by this Section 2.8(g)(iii). (iv) The Per Share Portion of the amounts, if any, minus (2payable to the Stockholders pursuant to this Section 2.8(g) shall herein be referred to as the Negative Total Equity Adjustment, if any, minus (3) if the Litigation Claim has not become a Final Claim as of the “Post-Closing Payment Date, the Holdback, plus (4) an amount equal to ten percent (10%) of the sum of the Unsold Inventory and Delinquent Accounts Receivable (such amount in this clause (4), the "Sludge Amount"), minus (5) one-half of the fees and expenses of the Independent Accountant paid pursuant to Section 3.5(d), minus (6) the filing fees contemplated by Section 8.16, minus (7) an amount equal to any pending indemnification claims pursuant to Section 12.1(f), minus (8) one-half of the fees and expenses of the Auditors; provided, however that Seller may elect by prompt written notice to Buyer to forego some or all of the payment required by clause (4) above and, upon such election, Buyer, at Seller's expense, shall cause the Company to (i) assign all rights, title and interest to the applicable Unsold Inventory and/or Delinquent Accounts Receivable to Seller on the Post- Closing Payment Date, (ii) deliver any such Unsold Inventory to Seller within 90 days following the Post-Closing Payment Date. Buyer agrees that if it breaches its obligation to make the payments required by this Section 3.4(a) when due and owing, such payment shall accrue interest from the Post Closing Payment Date until full satisfaction of such payment obligation at an interest rate equal to the U.S. prime rate of the Royal Bank of Canada plus 2% (calculated dailyPayment”). (b) If the Litigation Claim has not become a Final Claim as of the Post-Closing Payment Date, Buyer and Seller shall establish with the Escrow Agent an escrow account, and Buyer shall deposit an amount (the "Holdback") equal to the lesser of (i) $4,200,000 and (ii) $8,000,000, minus the Negative Total Equity Adjustment, if any, plus, the Sludge Amount, with the Escrow Agent, which shall be held pursuant to an escrow agreement in the form attached hereto as Exhibit C (the "Holdback Escrow Agreement"). (c) If the Litigation Claim has become a Final Claim on or before the Post-Closing Payment Date, Buyer shall not subtract the Holdback from any payments required to be made to Seller pursuant to Section 3.4(a). (d) On or before the Post-Closing Payment Date, Buyer shall cause the Company to pay Seller, in immediately available funds to an account designated by Seller, the amount due pursuant to Section 8.15. (e) Following the final adjudication or settlement of each pending indemnification claim pursuant to Section 12.1 following the Post-Closing Payment Date, to the extent that Seller is not required to indemnify Buyer or the Company pursuant to Section 12.1, Buyer shall pay such amount withheld pursuant to Section 12.1(f) with respect to such pending claim to Seller in immediately available funds to an account designated by Seller.

Post-Closing Payments. (ai) Subject Upon the final determination of (A) the Company Third-Party Expenses, Company Transaction Expenses and Parent Transaction Expenses, (B) the Unpaid Pre-Closing Taxes, (C) the Closing Indebtedness, (D) the Adjusted Net Equity Adjustment Amount and (E) the amount of any Excess Company Bridge Amount pursuant to this Section 12.11.8: (A) if the Total Consideration calculated using the amounts finally determined pursuant to this Section 1.8 is greater than the Total Consideration calculated using the amounts set forth in the Closing Statement (the difference between such amounts, on the “Post-Closing Adjustment Excess”), then the Company Stockholders shall be entitled to receive such Post-Closing Adjustment Excess from Parent under this Section 1.8(e); (B) if the Total Consideration calculated using the amounts set forth in the Closing Statement is less than the Total Consideration calculated using the amounts finally determined pursuant to this Section 1.8 (the difference between such amounts, the “Post-Closing Adjustment Deficit”), then Parent shall be entitled to receive such Post-Closing Adjustment Deficit from the Company Stockholders under this Section 1.8(e); and (C) if the Total Consideration calculated using the amounts set forth in the Closing Statement is equal to the Total Consideration calculated using the amounts finally determined pursuant to this Section 1.8, then no payments shall be made pursuant to this Section 1.8(e). (ii) Within five (5) Business Days after the determinations set forth in clause (i) of this Section 1.8(e), either (A) Parent shall, in the event there is a Post-Closing Adjustment Excess, deposit or shall cause to be deposited with the Paying Agent, by wire transfer of immediately available funds, an amount in cash equal to the Post-Closing Payment DateAdjustment Excess, Buyer which shall pay be payable to the Company Stockholders in accordance with Section 1.7; or cause (B) Parent and the Escrow Representative shall, in the event there is a Post-Closing Adjustment Deficit, provide a joint written instruction to the Escrow Agent to deliver an amount in cash equal to the Post-Closing Adjustment Deficit from the Escrow Fund, which shall be deemed to be paid deducted from the portion of the Escrow Fund attributable to Sellereach Company Stockholder based on such holder’s Pro Rata Escrow Portion of the Escrow Fund. For avoidance of doubt, in immediately available funds to an account designated by Seller, the amount of $8,000,000, plus (1) the Positive Total Equity Adjustment, if any, minus (2) the Negative Total Equity Adjustment, if any, minus (3) if the Litigation Claim has not become a Final Claim as any recovery of the Post-Closing Payment Date, the Holdback, plus (4) an amount equal to ten percent (10%) of the sum of the Unsold Inventory and Delinquent Accounts Receivable (such amount in this clause (4), the "Sludge Amount"), minus (5) one-half of the fees and expenses of the Independent Accountant paid pursuant to Section 3.5(d), minus (6) the filing fees contemplated by Section 8.16, minus (7) an amount equal Adjustment Deficit shall not be subject to any pending indemnification claims pursuant to Section 12.1(f), minus of limitations set forth in Sections 7.3(a) or (8) one-half of the fees and expenses of the Auditors; provided, however that Seller may elect by prompt written notice to Buyer to forego some or all of the payment required by clause (4) above and, upon such election, Buyer, at Seller's expense, shall cause the Company to (i) assign all rights, title and interest to the applicable Unsold Inventory and/or Delinquent Accounts Receivable to Seller on the Post- Closing Payment Date, (ii) deliver any such Unsold Inventory to Seller within 90 days following the Post-Closing Payment Date. Buyer agrees that if it breaches its obligation to make the payments required by this Section 3.4(a) when due and owing, such payment shall accrue interest from the Post Closing Payment Date until full satisfaction of such payment obligation at an interest rate equal to the U.S. prime rate of the Royal Bank of Canada plus 2% (calculated dailyb). (biii) If the Litigation Claim has not become a Final Claim as of the Post-Closing Payment Date, Buyer and Seller shall establish with the Escrow Agent an escrow account, and Buyer shall deposit an amount (the "Holdback") equal to the lesser of (i) $4,200,000 and (ii) $8,000,000, minus the Negative Total Equity Adjustment, if any, plus, the Sludge Amount, with the Escrow Agent, which shall be held pursuant to an escrow agreement in the form attached hereto as Exhibit C (the "Holdback Escrow Agreement"). (c) If the Litigation Claim has become a Final Claim on or before the Post-Closing Payment Date, Buyer shall not subtract the Holdback from any payments required to be Any payment made to Seller pursuant to under this Section 3.4(a). (d) On or before the Post-Closing Payment Date, Buyer shall cause the Company to pay Seller, in immediately available funds to an account designated by Seller, the amount due pursuant to Section 8.15. (e) Following the final adjudication or settlement of each pending indemnification claim pursuant to Section 12.1 following the Post-Closing Payment Date1.8, to the maximum extent that Seller is not required permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to indemnify Buyer or the Company pursuant to Section 12.1, Buyer shall pay such amount withheld pursuant to Section 12.1(f) with respect to such pending claim to Seller in immediately available funds to an account designated by SellerTotal Consideration.

Post-Closing Payments. (ai) Subject If the Total Consideration as finally determined pursuant to this Section 12.11.4 is greater than the estimated Total Consideration contained in the Estimated Closing Statement (the amount of such difference, on the Post-Closing Payment Date“Adjustment Amount”), Buyer no later than four (4) Business Days after the final Total Consideration has been determined, then Parent shall pay deposit or shall cause to be paid deposited with the Payment Agent, an amount of cash and a number of shares of Parent Class A Common Stock, for payment to Seller, such Stockholders and holders of Company Options and Company Warrants in immediately available funds to an account designated by Selleraccordance with the additional amounts that each such holder would have received had the Adjustment Amount been included in the Total Consideration at the time of Closing (such amounts, the amount “Adjustment Consideration”). For the avoidance of $8,000,000, plus (1) the Positive Total Equity Adjustment, if any, minus (2) the Negative Total Equity Adjustment, if any, minus (3) if the Litigation Claim has not become a Final Claim as of the Post-Closing Payment Datedoubt, the Holdback, plus (4) an amount equal to ten Adjustment Consideration shall be paid fifty percent (1050%) in cash and fifty percent (50%) in shares of Parent Class A Common Stock (valued at the sum of the Unsold Inventory and Delinquent Accounts Receivable (such amount in this clause (4), the "Sludge Amount"), minus (5) one-half of the fees and expenses of the Independent Accountant paid pursuant to Section 3.5(d), minus (6) the filing fees contemplated by Section 8.16, minus (7) an amount equal to any pending indemnification claims pursuant to Section 12.1(f), minus (8) one-half of the fees and expenses of the Auditors; provided, however that Seller may elect by prompt written notice to Buyer to forego some or all of the payment required by clause (4) above and, upon such election, Buyer, at Seller's expense, shall cause the Company to (i) assign all rights, title and interest to the applicable Unsold Inventory and/or Delinquent Accounts Receivable to Seller on the Post- Closing Payment Date, (ii) deliver any such Unsold Inventory to Seller within 90 days following the Post-Closing Payment Date. Buyer agrees that if it breaches its obligation to make the payments required by this Section 3.4(a) when due and owing, such payment shall accrue interest from the Post Closing Payment Date until full satisfaction of such payment obligation at an interest rate equal to the U.S. prime rate of the Royal Bank of Canada plus 2% (calculated dailyParent Trading Price). (bii) If the Litigation Claim has not become a Final Claim Total Consideration as of finally determined pursuant to this Section 1.4 is less than the Post-estimated Total Consideration contained in the Estimated Closing Payment DateStatement, Buyer and Seller then Parent shall establish with deduct from the Escrow Agent an escrow account, and Buyer shall deposit Amount an amount (the "Holdback") in cash and stock equal to the lesser amount of (i) $4,200,000 and (ii) $8,000,000, minus the Negative Total Equity Adjustment, if any, plus, the Sludge Amount, with the Escrow Agentsuch deficit, which shall be held pursuant deducted from Stockholders and holders of Company Options and Company Warrants in accordance with the amount that such holders would have not received had such deficit been reduced from the Total Consideration at the time of Closing (it being understood that such reduction shall not be in accordance with such holder’s Pro Rata Portions). For avoidance of doubt, (x) any recovery of any such deficit from the Escrow Amount shall not be subject to an escrow agreement any of the limitations on indemnification set forth in Section 9.3 and (y) any amount deducted from the form attached hereto as Exhibit C Escrow Amount shall be deducted fifty percent (50%) in cash and fifty percent (50%) in shares of Parent Class A Common Stock (valued at the "Holdback Escrow Agreement"Parent Trading Price). (c) If the Litigation Claim has become a Final Claim on or before the Post-Closing Payment Date, Buyer shall not subtract the Holdback from any payments required to be made to Seller pursuant to Section 3.4(a). (d) On or before the Post-Closing Payment Date, Buyer shall cause the Company to pay Seller, in immediately available funds to an account designated by Seller, the amount due pursuant to Section 8.15. (e) Following the final adjudication or settlement of each pending indemnification claim pursuant to Section 12.1 following the Post-Closing Payment Date, to the extent that Seller is not required to indemnify Buyer or the Company pursuant to Section 12.1, Buyer shall pay such amount withheld pursuant to Section 12.1(f) with respect to such pending claim to Seller in immediately available funds to an account designated by Seller.