Common use of Adjustment to Estimated Purchase Price Clause in Contracts

Adjustment to Estimated Purchase Price. (i) If the Actual Adjustment is a positive amount, Surviving Corporation will (A) pay to Shareholder Representative, on behalf of each holder of Company Equity Securities (as defined in Section 9.1(a)) as of immediately prior to the Closing (excluding holders of Options), such positive amount, together with interest on such amount at an annual rate equal to the LIBOR six-month rate of interest calculated on a 365-day year (as quoted on the Business Day prior to the payment date by the Wall Street Journal) (the “Interest Rate”) from the Closing Date to the date of the payment of such amount to Shareholder Representative, on behalf of the holders of Company Equity Securities as of immediately prior to the Closing (excluding holders of Options), less the applicable Pro Rata Portion of such amount payable to holders of Options, by wire transfer or delivery of other immediately available funds, in each case, within three business days after the date on which the Purchase Price is finally determined pursuant to Section 2.7(c) above, and (B) will pay (less any required withholding Tax) to each holder of Options such holder’s applicable Pro Rata Portion of the total amount due and payable by the Surviving Corporation pursuant to this first sentence of Section 2.7(d)(i). In such event, the Shareholder Representative shall disburse such proceeds to the holders of Company Equity Securities (excluding holders of Options) within five Business Days of receipt of such proceeds in accordance with the applicable Pro Rata Portion. (ii) If the Actual Adjustment is a negative amount, then within three Business Days after the date on which the Purchase Price is finally determined pursuant to Section 2.7(c) above, Parent and Shareholder Representative shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to deliver to the Surviving Corporation from the Escrow Funds an amount equal to the absolute value of such negative amount, together with interest on such amount at the Interest Rate from the Closing Date to the date of the payment of such amount to Parent; provided, however, that in no event will such aggregate amount exceed the amount then in the Escrow Account.

Adjustment to Estimated Purchase Price. (i) If the Actual Adjustment is a positive amount, (x) Parent or the Surviving Corporation will (A) shall pay to Shareholder Representative, on behalf of each holder of Company Equity Securities (as defined in Section 9.1(a)) as of immediately prior to the Closing (excluding holders of Options), such positive amount, together with interest on such amount at an annual rate equal to Representative the LIBOR six-month rate of interest calculated on a 365-day year (as quoted on the Business Day prior to the payment date by the Wall Street Journal) (the “Interest Rate”) from the Closing Date to the date portion of the payment of such amount Actual Adjustment due to Shareholder Representative, on behalf of the holders of Company Equity Securities as Common Shares (based on their aggregate Percentage Interests) (for distribution to such holders based on their relative Percentage Interests) and the remainder of immediately prior the Actual Adjustment to the Closing Surviving Corporation and/or any other Group Company designated by the Surviving Corporation (excluding for distribution to the holders of OptionsVested Company Options based on their relative Percentage Interests), less the applicable Pro Rata Portion of such amount payable to holders of Options, by wire transfer or delivery of other immediately available funds, in each case, in cash by wire transfer of immediately available funds and within three business days Business Days after the date on which the Purchase Price is finally determined pursuant to this Section 2.7(c2.9 and (y) abovesimultaneously therewith, Parent and the Representative shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release (A) to the Representative the portion of the funds then remaining in the Escrow Account due to the holders of Company Common Shares (based on their relative Percentage Interests) for distribution to such holders based on their relative Percentage Interests and (B) will pay (less any required withholding Tax) to each holder of Options such holder’s applicable Pro Rata Portion the remainder of the total funds then remaining in the Escrow Account to the Surviving Corporation and/or any other Group Company designated by the Surviving Corporation (for distribution to the holders of Vested Company Options based on their relative Percentage Interests); provided, that in no event shall the aggregate amount due paid by Parent and payable by the Surviving Corporation pursuant to this first sentence of Section 2.7(d)(i). In such event, the Shareholder Representative shall disburse such proceeds to the holders of Company Equity Securities (excluding holders of Options2.9(c)(i)(x) within five Business Days of receipt of such proceeds in accordance with the applicable Pro Rata Portionexceed $10,000,000. (ii) If the Actual Adjustment is a negative amount, then within three Business Days after the date on which the Purchase Price is finally determined pursuant to this Section 2.7(c) above2.9, Parent and Shareholder the Representative shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to deliver to the Surviving Corporation from the Escrow Funds Parent an amount equal to the absolute value of such negative amountamount out of the Escrow Account; provided that if the absolute value of the Actual Adjustment is less than the Escrow Amount, together then simultaneously with interest the delivery of such joint written instructions, Parent and the Representative shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release (A) to the Representative the portion of the excess funds in the Escrow Account due to the holders of Company Common Shares (based on their aggregate Percentage Interests) for distribution to such holders of Company Common Shares based on their relative Percentage Interests and (B) the remainder of the excess funds in the Escrow Account to the Surviving Corporation and/or any other Group Company designated by the Surviving Corporation (for distribution to the holders of Vested Company Options based on their relative Percentage Interests), in each case, by wire transfer of immediately available funds and within three Business Days after the date on which the Purchase Price is finally determined pursuant to this Section 2.9. (iii) With respect to each amount payable in respect of Company Common Shares and Vested Company Options, no later than three (3) Business Days prior to such payment from the Escrow Account to the Representative and the Surviving Corporation (or other Group Company designated by the Surviving Corporation), the Representative shall deliver to Parent a statement setting forth the portions of such payment required to be paid hereunder to the Representative (for distribution to holders of Company Common Stock based on their relative Percentage Interests) and to the Surviving Corporation or any other Group Company designated by the Surviving Corporation (for distribution to the holders of Vested Company Options based on their relative Percentage Interests). Notwithstanding anything to the contrary herein, (I) Parent, the Surviving Corporation and each Group Company making payments in respect of Company Vested Options shall be entitled to rely on such amount at statement and the Interest Rate from information provided therein by the Closing Date Representative in all respects without any further inquiry and (II) following the payment by Parent (or out of the Escrow Account) of the applicable amounts to the date Representative or the Surviving Corporation or any other Group Company designated by the Surviving Corporation so indicated in such statement, making such payment to the Representative or the Surviving Corporation or any other Group Company designated by the Surviving Corporation in accordance with such statement, none of Parent, the Surviving Corporation or any such Group Company shall have any obligation with respect to the distribution of such amounts by the Representative. (iv) In the event that, upon the submission of any items in dispute to the Accounting Firm pursuant to Section 2.9(b), the undisputed items would result in a payment out of the Escrow Account to one party, the other, or both, such payment shall be made promptly following such submission, applying the provisions of this Section 2.9(c) mutatis mutandis (including by executing and delivering joint written instructions in respect of such payment to the Escrow Agent), and any such payment will be credited against any payment required to be paid pursuant to this Section 2.9(c). (v) For the avoidance of doubt, except for Claims for Actual Fraud against the Person committing such Actual Fraud, the Escrow Amount shall serve as the sole and exclusive source of recovery for any amounts owed to Parent in connection with the final determination of the Purchase Price and Actual Adjustment pursuant to this Section 2.9. (vi) Promptly after receipt of the amounts to be paid to the Surviving Corporation pursuant to this Section 2.9(c), if any, the Surviving Corporation shall pay or cause to be paid to each holder of Vested Company Options the applicable portion of such amount to Parent; provided(based on their relative Percentage Interests) through the Surviving Corporation’s payroll or, however, that in no event will such aggregate amount exceed the amount then in the Escrow Accountcase of any non-U.S. holder of Vested Company Options, either through the applicable Group Company’s payroll or through such other means customary for such jurisdiction (but in any event in accordance with Applicable Law) and subject to the delivery of any tax forms (including the delivery of an applicable Tax form, to the extent required by Applicable Law and to the extent that such non‑U.S. holder has not already provided an applicable Tax form to the Company). (vii) Notwithstanding anything to the contrary herein, no holder of Company Common Shares or Company Preferred Shares shall be entitled to receive payments pursuant to this Section 2.9(c) until such holder has complied with Section 2.13 (including, for the avoidance of doubt, by delivering a properly completed and duly executed Letter of Transmittal and surrendering its Company Stock Certificates or an affidavit of loss in lieu thereof).

Adjustment to Estimated Purchase Price. (i) If the Actual Adjustment is a positive amount, Surviving Corporation will amount (the “Positive Adjustment Amount”): (A) pay Buyer will pay, or cause to Shareholder Representativebe paid, on behalf of each holder of Company Equity Securities (as defined in Section 9.1(a)) as of immediately prior to the Closing (excluding holders of Options), such positive amount, together with interest on such amount at an annual rate equal to the LIBOR six-month rate of interest calculated on a 365-day year (as quoted on the Business Day prior to the payment date by the Wall Street Journal) (the “Interest Rate”) from the Closing Date to the date of the payment of such amount to Shareholder Representative, Representative on behalf of the holders of Company Equity Securities as of immediately prior Shareholders for distribution to the Closing Shareholders in accordance with their respective Cash Proceeds Percentages set forth on Exhibit B, an amount in cash equal to the product of (excluding holders x) the Positive Adjustment Amount and (y) 100% minus the Aggregate Contribution Percentage, net of Options)applicable withholding taxes, less the applicable Pro Rata Portion of such amount payable to holders of Optionsif any, by wire transfer or delivery of other immediately available funds, in each case, funds within three business days after the date on which the Purchase Price is finally determined pursuant to Section 2.7(c(3) above, and (B) will pay (less any required withholding Tax) to each holder of Options such holder’s applicable Pro Rata Portion of the total amount due and payable by the Surviving Corporation pursuant to this first sentence of Section 2.7(d)(i). In such event, the Shareholder Representative shall disburse such proceeds to the holders of Company Equity Securities (excluding holders of Options) within five Business Days of receipt of such proceeds in accordance with the applicable Pro Rata Portion. (ii) If the Actual Adjustment is a negative amount, then within three Business Days after the date on which the Purchase Price is finally determined pursuant to Section 2.7(c2.3(b); (B) above, Parent Buyer and Shareholder the Representative shall deliver joint written instructions to the Escrow Agent instructing will instruct the Escrow Agent to deliver pay to the Surviving Corporation from Representative on behalf of the Escrow Funds Shareholders for distribution to the Shareholders in accordance with their respective Cash Proceeds Percentages set forth on Exhibit B, an amount equal to the Cash Escrow Amount, net of applicable withholding taxes, if any, out of the Escrow Account by wire transfer or delivery of other immediately available funds within three (3) Business Days after the date on which the Purchase Price is finally determined pursuant to Section 2.3(b); and (C) McJ Holding will issue additional McJ Units to the Continuing Shareholders in accordance with Exhibit B with an aggregate value (determined based on the price per McJ Unit to be paid under the Contribution Agreement) equal to the product of (x) the Positive Adjustment Amount plus the Escrow Amount and (y) the Aggregate Contribution Percentage. (ii) If the Actual Adjustment is a negative amount (the absolute value of such negative amount, together with interest on such amount at the Interest Rate from “Negative Adjustment Amount”) and the Closing Date Negative Adjustment Amount is less than the Escrow Amount: (A) Buyer and the Representative will instruct the Escrow Agent to pay (1) to the date Representative on behalf of the payment Shareholders for distribution to the Shareholders in accordance with their respective Cash Proceeds Percentages set forth on Exhibit B, an amount, if any, equal to the product of such (x) the Escrow Amount minus the Negative Adjustment Amount and (y) 100% minus the Aggregate Contribution Percentage, net of applicable withholding taxes, if any, out of the Escrow Account by wire transfer or delivery of other immediately available funds within three (3) Business Days after the date on which the Purchase Price is finally determined pursuant to Section 2.3(b), and (2) to Buyer the remaining amount of the Escrow Funds out of the Escrow Account by wire transfer or delivery of other immediately available funds within three (3) Business Days after the date on which the Purchase Price is finally determined pursuant to ParentSection 2.3(b); provided, however, that and (B) McJ Holding will issue additional McJ Units to the Continuing Shareholders in no event will such accordance with their respective Contributed Share Percentages set forth on Exhibit B with an aggregate amount exceed value (based on the amount then price per McJ Unit set forth in the Contribution Agreement) equal to the product of (x) the Escrow AccountAmount minus the Negative Adjustment Amount and (y) the Aggregate Contribution Percentage. (iii) If the Actual Adjustment is a Negative Adjustment Amount and is greater than or equal to the Escrow Amount: (A) Buyer and the Representative will instruct the Escrow Agent to pay to Buyer the Cash Escrow Amount out of the Escrow Account by wire transfer or delivery of other immediately available funds within three (3) Business Days after the date on which the Purchase Price is finally determined pursuant to Section 2.3(b); (B) if the Negative Adjustment Amount is greater than the Escrow Amount, the Non-Plan Shareholders will pay to Buyer, in accordance with the column entitled “Non-Plan Shareholders Percentages” on Schedule 1, an amount equal to the product of (x) the Negative Adjustment Amount minus the Escrow Amount and (y) 100% minus the Aggregate Contribution Percentage by wire transfer or delivery of other immediately available funds within three (3) Business Days after the date on which the Purchase Price is finally determined pursuant to Section 2.3(b); provided that Buyer may instead, in its sole discretion, elect to set off any amount owed by the Shareholders to Buyer pursuant to this clause (B) against the Midfield Amount payable to the Shareholders pursuant to Section 6.14; and (C) if the Negative Adjustment Amount is greater than the Escrow Amount, McJ Holding will cancel McJ Units issued to the Continuing Shareholders pursuant to the Contribution Agreement with an aggregate value equal to the product of (x) the Negative Adjustment Amount minus the Escrow Amount and (y) the Aggregate Contribution Percentage, in accordance with Exhibit B.