Common use of Adjustment of Consideration Clause in Contracts

Adjustment of Consideration. (a) As promptly as practicable, but in any event within ninety (90) calendar days following the Effective Date, Nu Skin shall deliver to the Stockholders' Representative the Closing Balance Sheet, together with an unqualified report thereon of Nu Skin's Accountants stating that the Closing Balance Sheet fairly presents the consolidated financial position of the Company at the Effective Date in conformity with U.S. GAAP applied on a basis consistent with the preparation of the Reference Balance Sheet. (i) Subject to clause (ii) of this Section 2.08(b), the Closing Balance Sheet delivered by Nu Skin to the Stockholders' Representative shall be deemed to be and shall be final, binding and conclusive on the parties hereto. (ii) The Stockholders' Representative may dispute the amount of the Closing Balance Sheet Book Value to the extent the net effect of such disputed amounts in the aggregate would affect the Closing Balance Sheet Book Value by more than the Designated Amount, but only on the basis that the amounts reflected on the Closing Balance Sheet were not arrived at in accordance with U.S. GAAP applied on a basis consistent with the preparation of the Reference Balance Sheet; provided, however, that the Stockholders' Representative shall have notified Nu Skin and Nu Skin's Accountants in writing of each disputed item, specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, within thirty (30) Business Days of Nu Skin's delivery of the Closing Balance Sheet to the Stockholders' Representative. In the event of such a dispute, the Stockholders' Accountants and Nu Skin's Accountants shall attempt to reconcile their differences, and any resolution by them as to any disputed amounts shall be final, binding and conclusive on the parties hereto. If any such resolution by Nu Skin's Accountants and the Stockholders' Accountants leaves in dispute amounts the net effect of which in the aggregate would not affect the Closing Balance Sheet Book Value by more than the Designated Amount, all such amounts remaining in dispute shall then be deemed to have been resolved in favor of the Closing Balance Sheet delivered by Nu Skin to the Stockholders' Representative. If the Stockholders' Accountants and Nu Skin's Accountants are unable to reach a resolution with such effect within twenty (20) Business Days after receipt by Nu Skin and Nu Skin's Accountants of the Stockholders' Representative written notice of dispute, the Stockholders' Accountants and Nu Skin's Accountants shall submit the items remaining in dispute for resolution to Deloitte & Touche (or, if such firm shall decline to act or is not, at the time of such submission, independent of the Company or Nu Skin, to another independent accounting firm of international reputation mutually acceptable to Nu Skin and the Stockholders' Representative) (the "Independent Accounting Firm"), which shall, within thirty (30) Business Days after such submission, determine and report to Nu Skin and the Stockholders' Representative upon such remaining disputed items, and such report shall be final, binding and conclusive on the Stockholders' Representative and Nu Skin. The fees and disbursements of the Independent Accounting Firm shall be allocated between the Stockholders and Nu Skin in the same proportion that the aggregate amount of such remaining disputed items so submitted to the Independent Accounting Firm that is unsuccessfully disputed by each such party (as finally determined by the Independent Accounting Firm) bears to the total amount of such remaining disputed items so submitted. (iii) In acting under this Agreement, Nu Skin's Accountants, the Stockholders' Accountants and the Independent Accounting Firm shall be entitled to the privileges and immunities of arbitrators. (iv) No adjustment pursuant to Section 2.08(c) shall be made with respect to amounts disputed by the Stockholders' Representative pursuant to this Section 2.08(b) unless the net effect of the amounts successfully disputed by the Stockholders' Representative in the aggregate is to increase the Closing Balance Sheet Book Value by at least the Designated Amount. (c) The Closing Balance Sheet shall be deemed final for the purposes of this Section 2.08 upon the earliest of (A) the failure of the Stockholders' Representative to notify Nu Skin of a dispute within thirty (30) Business Days of Nu Skin's delivery of the Closing Balance Sheet to the Stockholders' Representative, (B) the resolution of all disputes pursuant to Section 2.08(b)(ii) by Nu Skin's Accountants and the Stockholders' Accountants and (C) the resolution of all disputes, pursuant to Section 2.08(b)(ii) by the Independent Accounting Firm. The date the Closing Balance Sheet is deemed final is the "Adjustment Date". Subject to the limitation set forth in Section 2.08(b)(iv), on the Adjustment Date, an adjustment to the consideration given to the Stockholders pursuant to this Agreement shall be made as follows: (i) In the event that the Reference Balance Sheet Book Value exceeds the Closing Balance Sheet Book Value, by at least the Designated Amount, then the consideration given to the Stockholders shall be adjusted downward in an amount equal to such excess (the "Downward Adjustment"); provided, however, that in the event Nu Skin has taken actions in connection with the Merger which the parties mutually

Adjustment of Consideration. (a) As promptly 4.1 When the EBITDA Statement has become binding in accordance with Paragraph 3.5, and subject to Paragraph 4.4, if the amount of 2007 EBITDA equals or exceeds Target EBITDA: 4.1.1 subject to Clause 8 of the Agreement and to Clause 8 of the Studios Agreement the EBITDA Retention will be released and paid to the Vendors’ Solicitors as practicable, but agents for the Vendors and the Studios Vendors; and 4.1.2 the Purchaser shall pay by way of additional consideration for the Sale Shares payable under this Agreement and for the Studios Shares payable under the Studios Agreement a sum equal to one half of the amount by which 2007 EBITDA exceeds the Target EBITDA. and the Vendors and the Studios Vendors shall as soon as reasonably practicable thereafter and in any event within ninety (90) calendar seven days following of the Effective DatePayment Date notify the Purchaser of the apportionment of such additional consideration as between the Sale Shares as a whole and the Studios Shares as a whole. 4.2 Subject to Paragraph 4.3, Nu Skin shall deliver if the 2007 EBITDA is less than the Target EBITDA then the amount by which the 2007 EBITDA is less than the Target EBITDA will be multiplied by a factor of 5.4 and the amount which is equal to the Stockholders' Representative product will be paid by the Closing Balance Sheet, together with an unqualified report thereon of Nu Skin's Accountants stating Vendors and the Studios Vendors to the Purchaser. The amount payable to the Purchaser shall (to the extent that there are monies standing to the Closing Balance Sheet fairly presents the consolidated financial position credit of the Company at EBITDA Retention Account (after addition of interest and deduction of bank charges and other amounts which the Effective Date in conformity with U.S. GAAP applied on a basis consistent with bank or the preparation Vendors’ Solicitors and the Purchaser’s Solicitors are bound to make)) be released and paid from the EBITDA Retention Account within ten (10) Business Days of the Reference Balance Sheet. (i) Subject to clause (ii) of this Section 2.08(b), date when the Closing Balance Sheet delivered by Nu Skin to the Stockholders' Representative EBITDA Statement shall have become binding in accordance with Paragraph 3.5 and if such monies shall be deemed to be less than such amount then the Vendors and the Studios Vendors shall be final, binding and conclusive on the parties hereto. (ii) The Stockholders' Representative may dispute pay the amount of the Closing Balance Sheet Book Value balance of any monies payable to the extent the net effect of such disputed amounts in the aggregate would affect the Closing Balance Sheet Book Value by more than the Designated Amount, but only on the basis that the amounts reflected on the Closing Balance Sheet were not arrived at in accordance with U.S. GAAP applied on a basis consistent with the preparation of the Reference Balance Sheet; provided, however, that the Stockholders' Representative shall have notified Nu Skin and Nu Skin's Accountants in writing of each disputed item, specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, Purchaser also within thirty ten (3010) Business Days of Nu Skin's delivery such date. Subject always to Clause 8 of the Closing Balance Sheet Agreement and Clause 8 of the Studios Agreement the balance of the EBITDA Retention (if any) will be released and paid to the Stockholders' RepresentativeVendors Solicitors. In For the event avoidance of such a dispute, doubt and by way of example only if 2007 EBITDA is One million six hundred thousand pounds (£1.6m) the Stockholders' Accountants and Nu Skin's Accountants shall attempt to reconcile their differences, and any resolution by them as to any disputed amounts shall be final, binding and conclusive on the parties hereto. If any such resolution by Nu Skin's Accountants and the Stockholders' Accountants leaves in dispute amounts the net effect of which in the aggregate would not affect the Closing Balance Sheet Book Value by more than the Designated Amount, all such amounts remaining in dispute shall then be deemed to have been resolved in favor of the Closing Balance Sheet delivered by Nu Skin to the Stockholders' Representative. If the Stockholders' Accountants and Nu Skin's Accountants are unable to reach a resolution with such effect within twenty (20) Business Days after receipt by Nu Skin and Nu Skin's Accountants of the Stockholders' Representative written notice of dispute, the Stockholders' Accountants and Nu Skin's Accountants shall submit the items remaining in dispute for resolution to Deloitte & Touche (or, if such firm shall decline to act or is not, at the time of such submission, independent of the Company or Nu Skin, to another independent accounting firm of international reputation mutually acceptable to Nu Skin and the Stockholders' Representative) (the "Independent Accounting Firm"), which shall, within thirty (30) Business Days after such submission, determine and report to Nu Skin and the Stockholders' Representative upon such remaining disputed items, and such report shall be final, binding and conclusive on the Stockholders' Representative and Nu Skin. The fees and disbursements of the Independent Accounting Firm shall be allocated between the Stockholders and Nu Skin in the same proportion that the aggregate amount of such remaining disputed items so submitted to the Independent Accounting Firm that is unsuccessfully disputed by each such party (as finally determined by the Independent Accounting Firm) bears to the total amount of such remaining disputed items so submitted. (iii) In acting under this Agreement, Nu Skin's Accountants, the Stockholders' Accountants and the Independent Accounting Firm Purchaser shall be entitled to be paid Five hundred and forty thousand pounds (£540,000) and (subject to Clause 8 of the privileges Agreement and immunities Clause 8 of arbitratorsthe Studios Agreement) the sum of One million and eighty thousand pounds (£1,080,000) will be paid to the Vendors’ Solicitors from the EBITDA Retention (together with any relevant interest thereon). (iv) No adjustment pursuant to Section 2.08(c) shall be made with respect to amounts disputed by the Stockholders' Representative pursuant to this Section 2.08(b) unless the net effect of the amounts successfully disputed by the Stockholders' Representative in the aggregate is to increase the Closing Balance Sheet Book Value by at least the Designated Amount. (c) 4.3 The Closing Balance Sheet shall be deemed final for the purposes of this Section 2.08 upon the earliest of (A) the failure of the Stockholders' Representative to notify Nu Skin of a dispute within thirty (30) Business Days of Nu Skin's delivery of the Closing Balance Sheet to the Stockholders' Representative, (B) the resolution of all disputes pursuant to Section 2.08(b)(ii) by Nu Skin's Accountants parties agree and the Stockholders' Accountants and (C) the resolution of all disputes, pursuant to Section 2.08(b)(ii) by the Independent Accounting Firm. The date the Closing Balance Sheet is deemed final is the "Adjustment Date". Subject to the limitation set forth in Section 2.08(b)(iv), on the Adjustment Date, an adjustment to the consideration given to the Stockholders pursuant to this Agreement shall be made as follows: (i) In the event that the Reference Balance Sheet Book Value exceeds the Closing Balance Sheet Book Value, by at least the Designated Amount, then the consideration given to the Stockholders shall be adjusted downward in an amount equal to such excess (the "Downward Adjustment"); provided, however, acknowledge that in the event Nu Skin has taken actions that 2007 EBITDA is less than the Target EBITDA the liability of the Vendors and the Studios Vendors to the Purchaser under this Schedule shall not exceed the sum of one million six hundred and twenty thousand pounds (£1,620,000) (being the EBIDTA Retention) but save as expressly provided otherwise in connection with this Agreement neither the Merger which agreement or determination of the parties mutuallyEBITDA Statement nor the adjustment of the consideration pursuant to this Schedule shall constitute or operate as a waiver of or affect any other rights powers or remedies of the Purchaser or any other provision of this Agreement or the Studios Agreement and shall not preclude the exercise by the Purchaser of any other right power or remedy of the Purchaser arising under this Agreement the Studios Agreement or otherwise.

Adjustment of Consideration. (a) As promptly 4.1 When the EBITDA Statement has become binding in accordance with Paragraph 3.5, and subject to Paragraph 4.4, if the amount of 2007 EBITDA equals or exceeds Target EBITDA: 4.1.1 subject to Clause 8 of the Agreement and to Clause 8 of the Thames Agreement the EBITDA Retention will be released and paid to the Vendors’ Solicitors as practicable, but agents for the Vendors and the Thames Vendors; and 4.1.2 the Purchaser shall pay by way of additional consideration for the Sale Shares payable under this Agreement and for the Thames Shares payable under the Thames Agreement a sum equal to one half of the amount by which 2007 EBITDA exceeds the Target EBITDA. and the Vendors and the Thames Vendors shall as soon as reasonably practicable thereafter and in any event within ninety (90) calendar seven days following of the Effective DatePayment Date notify the Purchaser of the apportionment of such additional consideration as between the Sale Shares as a whole and the Thames Shares as a whole. 4.2 Subject to Paragraph 4.3, Nu Skin shall deliver if the 2007 EBITDA is less than the Target EBITDA then the amount by which the 2007 EBITDA is less than the Target EBITDA will be multiplied by a factor of 5.4 and the amount which is equal to the Stockholders' Representative product will be paid by the Closing Balance Sheet, together with an unqualified report thereon of Nu Skin's Accountants stating Vendors and the Thames Vendors to the Purchaser. The amount payable to the Purchaser shall (to the extent that there are monies standing to the Closing Balance Sheet fairly presents the consolidated financial position credit of the Company at EBITDA Retention Account (after addition of interest and deduction of bank charges and other amounts which the Effective Date in conformity with U.S. GAAP applied on a basis consistent with bank or the preparation Vendors’ Solicitors and the Purchaser’s Solicitors are bound to make)) be released and paid from the EBITDA Retention Account within ten (10) Business Days of the Reference Balance Sheet. (i) Subject to clause (ii) of this Section 2.08(b), date when the Closing Balance Sheet delivered by Nu Skin to the Stockholders' Representative EBITDA Statement shall have become binding in accordance with Paragraph 3.5 and if such monies shall be deemed to be less than such amount then the Vendors and the Thames Vendors shall be final, binding and conclusive on the parties hereto. (ii) The Stockholders' Representative may dispute pay the amount of the Closing Balance Sheet Book Value balance of any monies payable to the extent the net effect of such disputed amounts in the aggregate would affect the Closing Balance Sheet Book Value by more than the Designated Amount, but only on the basis that the amounts reflected on the Closing Balance Sheet were not arrived at in accordance with U.S. GAAP applied on a basis consistent with the preparation of the Reference Balance Sheet; provided, however, that the Stockholders' Representative shall have notified Nu Skin and Nu Skin's Accountants in writing of each disputed item, specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, Purchaser also within thirty ten (3010) Business Days of Nu Skin's delivery such date. Subject always to Clause 8 of the Closing Balance Sheet Agreement and Clause 8 of the Thames Agreement the balance of the EBITDA Retention (if any) will be released and paid to the Stockholders' RepresentativeVendors Solicitors. In For the event avoidance of such a dispute, doubt and by way of example only if 2007 EBITDA is One million six hundred thousand pounds (£1.6m) the Stockholders' Accountants and Nu Skin's Accountants shall attempt to reconcile their differences, and any resolution by them as to any disputed amounts shall be final, binding and conclusive on the parties hereto. If any such resolution by Nu Skin's Accountants and the Stockholders' Accountants leaves in dispute amounts the net effect of which in the aggregate would not affect the Closing Balance Sheet Book Value by more than the Designated Amount, all such amounts remaining in dispute shall then be deemed to have been resolved in favor of the Closing Balance Sheet delivered by Nu Skin to the Stockholders' Representative. If the Stockholders' Accountants and Nu Skin's Accountants are unable to reach a resolution with such effect within twenty (20) Business Days after receipt by Nu Skin and Nu Skin's Accountants of the Stockholders' Representative written notice of dispute, the Stockholders' Accountants and Nu Skin's Accountants shall submit the items remaining in dispute for resolution to Deloitte & Touche (or, if such firm shall decline to act or is not, at the time of such submission, independent of the Company or Nu Skin, to another independent accounting firm of international reputation mutually acceptable to Nu Skin and the Stockholders' Representative) (the "Independent Accounting Firm"), which shall, within thirty (30) Business Days after such submission, determine and report to Nu Skin and the Stockholders' Representative upon such remaining disputed items, and such report shall be final, binding and conclusive on the Stockholders' Representative and Nu Skin. The fees and disbursements of the Independent Accounting Firm shall be allocated between the Stockholders and Nu Skin in the same proportion that the aggregate amount of such remaining disputed items so submitted to the Independent Accounting Firm that is unsuccessfully disputed by each such party (as finally determined by the Independent Accounting Firm) bears to the total amount of such remaining disputed items so submitted. (iii) In acting under this Agreement, Nu Skin's Accountants, the Stockholders' Accountants and the Independent Accounting Firm Purchaser shall be entitled to be paid Five hundred and forty thousand pounds (£540,000) and (subject to Clause 8 of the privileges Agreement and immunities Clause 8 of arbitratorsthe Thames Agreement) the sum of One million and eighty thousand pounds (£1,080,000) will be paid to the Vendors’ Solicitors from the EBITDA Retention (together with any relevant interest thereon). 4.3 The parties agree and acknowledge that in the event that 2007 EBITDA is less than the Target EBITDA the liability of the Vendors and the Thames Vendors to the Purchaser under this Schedule shall not exceed the sum of one million six hundred and twenty thousand pounds (iv£1,620,000) No (being the EBIDTA Retention) but save as expressly provided otherwise in this Agreement neither the agreement or determination of the EBITDA Statement nor the adjustment pursuant to Section 2.08(c) shall be made with respect to amounts disputed by of the Stockholders' Representative consideration pursuant to this Section 2.08(b) unless the net effect Schedule shall constitute or operate as a waiver of or affect any other rights powers or remedies of the amounts successfully disputed Purchaser or any other provision of this Agreement or the Thames Agreement and shall not preclude the exercise by the Stockholders' Representative in Purchaser of any other right power or remedy of the aggregate is to increase Purchaser arising under this Agreement the Closing Balance Sheet Book Value by at least the Designated AmountThames Agreement or otherwise. (c) The Closing Balance Sheet shall be deemed final for the purposes of this Section 2.08 upon the earliest of (A) the failure of the Stockholders' Representative to notify Nu Skin of a dispute within thirty (30) Business Days of Nu Skin's delivery of the Closing Balance Sheet to the Stockholders' Representative, (B) the resolution of all disputes pursuant to Section 2.08(b)(ii) by Nu Skin's Accountants and the Stockholders' Accountants and (C) the resolution of all disputes, pursuant to Section 2.08(b)(ii) by the Independent Accounting Firm. The date the Closing Balance Sheet is deemed final is the "Adjustment Date". Subject to the limitation set forth in Section 2.08(b)(iv), on the Adjustment Date, an adjustment to the consideration given to the Stockholders pursuant to this Agreement shall be made as follows: (i) 4.4 In the event that there is a dispute between the Reference Balance Sheet Book Value exceeds Purchaser and the Closing Balance Sheet Book Value, by at least Vendors or the Designated Amount, then the consideration given Thames Vendors as to the Stockholders 2007 EBITDA (notwithstanding the amount in dispute) such amount as is not in dispute shall (and notwithstanding the specific provisions of Clause 8.10 of the Agreement and Clause 8.10 of the Thames Agreement that no amount shall be adjusted downward in an amount equal released before the Payment Date) but subject always to such excess any amounts being validly retained pursuant to Clause 8 of the Agreement or (as the "Downward Adjustment"); provided, however, that in case may be) Clause 8 of the event Nu Skin has taken actions in connection Thames Agreement be released and paid from the EBITDA Retention to the Vendors’ Solicitors as agent for the Vendors and the Thames Vendors (together with the Merger any relevant interest thereon and after deduction or allowance for any bank charges and other deductions which the parties mutuallybank or the Vendors’ Solicitors and the Purchaser’s Solicitors are bound to make)

Adjustment of Consideration. (a) As promptly as practicable, but in any event within ninety (90) calendar days following the Effective Date, Nu Skin shall deliver to the Stockholders' Representative the Closing Balance Sheet, together with an unqualified report thereon of Nu Skin's Accountants stating that the Closing Balance Sheet fairly presents the consolidated financial position of the Company at the Effective Date in conformity with U.S. GAAP applied on a basis consistent with the preparation of the Reference Balance Sheet. (i) Subject to clause (ii) of this Section 2.08(b), the Closing Balance Sheet delivered by Nu Skin to the Stockholders' Representative shall be deemed to be and shall be final, binding and conclusive on the parties hereto. (ii) The Stockholders' Representative may dispute the amount of the Closing Balance Sheet Book Value to the extent the net effect of such disputed amounts in the aggregate would affect the Closing Balance Sheet Book Value by more than the Designated Amount, but only on the basis that the amounts reflected on the Closing Balance Sheet were not arrived at in accordance with U.S. GAAP applied on a basis consistent with the preparation of the Reference Balance Sheet; provided, however, that the Stockholders' Representative shall have notified Nu Skin and Nu Skin's Accountants in writing of each disputed item, specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, within thirty (30) Business Days of Nu Skin's delivery of the Closing Balance Sheet to the Stockholders' Representative. In the event of such a dispute, the Stockholders' Accountants and Nu Skin's Accountants shall attempt to reconcile their differences, and any resolution by them as to any disputed amounts shall be final, binding and conclusive on the parties hereto. If any such resolution by Nu Skin's Accountants and the Stockholders' Accountants leaves in dispute amounts the net effect of which in the aggregate would not affect the Closing Balance Sheet Book Value by more than the Designated Amount, all such amounts remaining in dispute shall then be deemed to have been resolved in favor of the Closing Balance Sheet delivered by Nu Skin to the Stockholders' Representative. If the Stockholders' Accountants and Nu Skin's Accountants are unable to reach a resolution with such effect within twenty (20) Business Days after receipt by Nu Skin and Nu Skin's Accountants of the Stockholders' Representative written notice of dispute, the Stockholders' Accountants and Nu Skin's Accountants shall submit the items remaining in dispute for resolution to Deloitte & Touche (or, if such firm shall decline to act or is not, at the time of such submission, independent of the Company or Nu Skin, to another independent accounting firm of international reputation mutually acceptable to Nu Skin and the Stockholders' Representative) (the "Independent Accounting Firm"), which shall, within thirty (30) Business Days after such submission, determine and report to Nu Skin and the Stockholders' Representative upon such remaining disputed items, and such report shall be final, binding and conclusive on the Stockholders' Representative and Nu Skin. The fees and disbursements of the Independent Accounting Firm shall be allocated between the Stockholders and Nu Skin in the same proportion that the aggregate amount of such remaining disputed items so submitted to the Independent Accounting Firm that is unsuccessfully disputed by each such party (as finally determined by the Independent Accounting Firm) bears to the total amount of such remaining disputed items so submitted. (iii) In acting under this Agreement, Nu Skin's Accountants, the Stockholders' Accountants and the Independent Accounting Firm shall be entitled to the privileges and immunities of arbitrators. (iv) No adjustment pursuant to Section 2.08(c) shall be made with respect to amounts disputed by the Stockholders' Representative pursuant to this Section 2.08(b) unless the net effect of the amounts successfully disputed by the Stockholders' Representative in the aggregate is to increase the Closing Balance Sheet Book Value by at least the Designated Amount. (c) The Closing Balance Sheet shall be deemed final for the purposes of this Section 2.08 upon the earliest earlier of (A) the failure of NSAP to notify the Stockholders' Representative to notify Nu Skin of a dispute within thirty (30) 30 Business Days of Nu Skin's the Stockholders' delivery of the Closing Balance Sheet to the Stockholders' RepresentativeNSAP, (B) the resolution of all disputes disputes, pursuant to Section 2.08(b)(ii) 2.08(b), by Nu SkinNSAP's Accountants and the Stockholders' Accountants and (C) the resolution of all disputes, pursuant to Section 2.08(b)(ii) 2.08(b), by the Independent Accounting Firm. The date Within 10 Business Days after the Closing Balance Sheet is being deemed final is the "Adjustment Date". Subject to the limitation set forth in Section 2.08(b)(iv), on the Adjustment Datefinal, an adjustment to the consideration given to the Stockholders pursuant to this Agreement for the Nu Skin Shares shall be made as follows: (i) In in the event that the net asset value reflected on the Reference Balance Sheet Book Value exceeds the net asset value reflected on the Closing Balance Sheet Book Value, by at least the Designated AmountSheet, then the consideration given issued to the Stockholders for the Nu Skin Shares shall be adjusted downward in an amount equal to such excess (the "Downward Adjustment"). NSAP shall deliver written notice to each Stockholder specifying each Stockholder's pro rata share of such Downward Adjustment, and each Stockholder shall, within 10 Business Days of his receipt of such notice remit to NSAP the number of shares of NSAP Common Stock equal to his pro rata share of such Downward Adjustment to be calculated by dividing the Downward Adjustment by the average of the closing price per share of NSAP Common Stock on the New York Stock Exchange for the 20 consecutive trading days ending on the date five days prior to the date of such remittance; provided, however, that and (ii) in the event that the net asset value reflected on the Closing Balance Sheet exceeds the net asset value reflected on the Reference Balance Sheet, then the consideration issued to the Stockholders for the Nu Skin has taken actions Shares shall be adjusted upward in connection with an amount equal to such excess (the Merger which "Upward Adjustment") and NSAP shall, within 10 Business Days of such determination, pay the parties mutuallyUpward Adjustment by issuing to the Stockholders NSAP Common Stock in an amount to be calculated by dividing the Upward Adjustment by the Average NSAP Common Stock Price at Closing. Each Stockholder will receive a pro rata number of such shares of NSAP Common Stock that is in proportion to the number of NSI Shares originally transferred by such Stockholder pursuant to Section 2.01.