Common use of Closing Consideration Clause in Contracts

Closing Consideration. The total consideration for the --------------------- Purchased Assets shall consist of the following payments: 2.1.1 At the Closing, Buyer shall pay to Seller an amount equal to $13,255,000.00, as adjusted pursuant to this Section 2.1.1 (the "Initial Payment"). The Initial Payment shall be made by wire --------------- transfer to an account or accounts designated by Seller by written notice to Buyer given at least two (2) business days prior to the Closing Date. At least seven (7) business days prior to the Closing Date, Seller shall also deliver to Buyer a schedule (the "Net Book -------- Value Statement"), prepared by Seller in good faith, of the Net --------------- Book Value (as such term is hereinafter defined) as of the close of business at September 30, 2001. If the Net Book Value as of the close of business on September 30, 2001 as set forth in the Net Book Value Statement exceeds $7,154,710.00, the Closing Payment shall be increased by the amount by which the Net Book Value as set forth in the Net Book Value Statement exceeds $7,154,710.00. If the Net Book Value as of the close of business on September 30, 2001 as -------------- set forth in the Net Book Value Statement is less than $7,154,710.00, the Closing Payment shall be decreased by the amount by which the Net Book Value as set forth in the Net Book Value Statement is less than $7,154,710.00. As used herein, "Net Book Value" shall mean (i) the total assets of Seller as set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to cash, cash equivalents, accounts receivable, inventory, prepaid expenses, investments in affiliates, property and equipment (net of depreciation) and other tangible assets) minus (ii) booked goodwill ----- and other booked intangible assets minus (iii) the total ----- liabilities of Seller as set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to accounts payable, other accrued liabilities, and accrued taxes (other than federal and state income taxes)) minus (iv) booked but Excluded Assets plus (v) ----- ---- booked but Excluded Liabilities plus (vi) 34% of accrued vacation ---- pay.

Closing Consideration. The total consideration for portion of the --------------------- Purchased Assets Merger Consideration to be paid by Buyer at the Closing hereunder (the “Closing Consideration”), which amount shall be subject to adjustment after the Closing pursuant to Section 1.08(e) shall consist of the following paymentsfollowing: 2.1.1 At the Closing, Buyer shall pay to Seller an (i) An amount equal to $13,255,000.00, as adjusted pursuant to this Section 2.1.1 in cash (the "Initial Payment"). The Initial Payment shall be made by wire --------------- transfer to an account or accounts designated by Seller by written notice to Buyer given at least two “Closing Cash Consideration”) equal to: (2A) business days prior to $105,000,000; plus (B) all cash and cash equivalents of the Company as of the Closing Date. At least seven Date (7the “Closing Cash”); plus (C) business days prior to the amount, if any, by which the Estimated Net Working Capital Amount exceeds the Target Net Working Capital Amount; minus (D) the amount, if any, by which the Target Net Working Capital Amount exceeds the Estimated Net Working Capital Amount; minus (E) the Working Capital Escrow; minus (F) the Indebtedness of the Company as of the Closing Date, Seller shall also deliver to Buyer a schedule if any (the "Net Book -------- Value Statement"“Closing Date Indebtedness”), prepared by Seller in good faith, of ; minus (G) the Net --------------- Book Value (as such term is hereinafter defined) Unpaid Company Transaction Expenses as of the close Closing Date; minus (H) the Escrow Expense Fund; minus (I) the Escrow Cash. (ii) A number of business at September 30shares of Buyer Common Stock equal to (A) the Total Buyer Shares; minus (B) the Escrow Shares (the “Closing Shares”); provided, 2001. If that the Net Book Value as of the close of business on September 30, 2001 as set forth in the Net Book Value Statement exceeds $7,154,710.00, the Closing Payment cash amount deliverable pursuant to Section 1.08(a)(i) shall be increased by the amount by Cash-in-Lieu attributable to any Closing Shares which would be delivered to Non-Qualifying Holders (the Net Book Value “Closing Cash-in-Lieu”) and the number of Closing Shares deliverable pursuant to Section 1.08(a)(ii) shall be reduced accordingly; provided, further, that the Working Capital Escrow, Escrow Expense Fund, and Escrow Amount shall be included as set forth in the Net Book Value Statement exceeds $7,154,710.00. If the Net Book Value as part of the close definition of business on September 30, 2001 as -------------- set forth in the Net Book Value Statement is less than $7,154,710.00, the Closing Payment shall be decreased by the amount by which the Net Book Value as set forth in the Net Book Value Statement is less than $7,154,710.00. As used herein, "Net Book Value" shall mean (i) the total assets of Seller as set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to cash, cash equivalents, accounts receivable, inventory, prepaid expenses, investments in affiliates, property and equipment (net of depreciation) and other tangible assets) minus (ii) booked goodwill ----- and other booked intangible assets minus (iii) the total ----- liabilities of Seller as set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to accounts payable, other accrued liabilities, and accrued taxes (other than federal and state income taxes)) minus (iv) booked but Excluded Assets plus (v) ----- ---- booked but Excluded Liabilities plus (vi) 34% of accrued vacation ---- payMerger Consideration.

Closing Consideration. The total consideration for the --------------------- Purchased Assets shall consist of the following payments: 2.1.1 2.2.1 At the ClosingClosing and subject to the terms and conditions set forth herein, Buyer shall pay to Seller an amount equal the Provisional Purchase Price by: (a) the issue to $13,255,000.00Seller, credited as adjusted pursuant to this fully paid, of a number of shares (calculated in accordance with Section 2.1.1 2.2.2 and Schedule 2.6) in Buyer representing a maximum of 19.9% of Buyer’s issued share capital (the "Initial “Consideration Shares”) by way of set-off against Buyer’s debt to Seller for the Provisional Consideration Shares Amount; and (b) the wire transfer of immediately available funds equivalent to the Provisional Purchase Price less (i) the Provisional Consideration Shares Amount (the “Closing Cash Payment"). The Initial Payment shall be made by wire --------------- transfer ” including, for the avoidance of doubt the Escrow Amount) and (ii) the Escrow Amount, to an the account or accounts designated specified to Buyer by Seller by written notice delivered to Buyer given at least two (2) business days three Business Days prior to the Closing Date. At least seven . 2.2.2 The number of Consideration Shares shall be equal to a number of new shares in Buyer such that the percentage represented by the Consideration Shares compared to the aggregate number of shares in Buyer (7including the Consideration Shares) business days prior is equal to the percentage represented by the Provisional Consideration Shares Amount compared to the Closing Date, Seller shall also deliver to Date Buyer a schedule (the "Net Book -------- Value Statement"), prepared by Seller in good faith, of the Net --------------- Book Value (as such term is hereinafter defined) as of the close of business at September 30, 2001Equity Value. If the Net Book Value as Provisional Consideration Shares Amount exceeds EUR 85 million, the number of Consideration Shares and accordingly the percentage of the close issued share capital of business on September 30, 2001 as set forth in Buyer represented by the Net Book Value Statement exceeds $7,154,710.00Provisional Consideration Shares Amount shall be reduced until the Provisional Consideration Shares Amount is EUR 85 million. 2.2.3 If the Provisional Consideration Shares Amount is equal to or less than EUR 85 million, the Closing Cash Payment shall be increased by the Provisional Purchase Price less the Provisional Consideration Shares Amount. 2.2.4 At the Closing, Buyer will place into an interest-bearing account (the “Escrow Account”) with Crédit Lyonnais acting as escrow agent (the “Escrow Agent”) an amount by which equal to the Net Book higher of (a) 10% of the Closing Cash Payment and (b) the net amount of the Provisional Purchase Price and/or Provisional UPC France Equity Value as set forth in dispute, provided that such amount in the Net Book Value Statement exceeds $7,154,710.00. If the Net Book Value as Escrow Account will in no event exceed 20% of the close Closing Cash Payment (the “Escrow Amount”) pending the determination of business on September 30, 2001 as -------------- set forth in the Net Book Value Statement is less than $7,154,710.00, the Closing Payment shall be decreased by the amount by which the Net Book Value as set forth in the Net Book Value Statement is less than $7,154,710.00. As used herein, "Net Book Value" shall mean (i) the total assets of Seller as set forth in a balance sheet of Seller prepared Purchase Price in accordance with generally accepted accounting principles (including but not limited to cash, cash equivalents, accounts receivable, inventory, prepaid expenses, investments Section 2.7 as a reserve against any difference between the Provisional Purchase Price and the Purchase Price. The release of amounts held in affiliates, property and equipment (net of depreciation) and other tangible assets) minus (ii) booked goodwill ----- and other booked intangible assets minus (iii) the total ----- liabilities of Seller as set forth in a balance sheet of Seller prepared Escrow Account will be made in accordance with generally accepted accounting principles (including but not limited to accounts payable, other accrued liabilities, and accrued taxes (other than federal and state income taxes)) minus (iv) booked but Excluded Assets plus (v) ----- ---- booked but Excluded Liabilities plus (vi) 34% the terms of accrued vacation ---- paythe Escrow Agreement.

Closing Consideration. The total consideration for the --------------------- Purchased Assets shall consist of the following payments: 2.1.1 At the Closing, upon the terms and subject to the conditions set forth herein and subject to Section 2.6 below, Buyer shall shall: (i) pay to Seller an amount equal to $13,255,000.00the Paying Agent, as adjusted pursuant to this Section 2.1.1 (the "Initial Payment"). The Initial Payment shall be made by wire --------------- transfer to an account or accounts designated by Seller by written notice to Buyer given at least two (2) business days prior for distribution to the Closing Date. At least seven (7) business days prior to the Closing Date, Seller shall also deliver to Buyer a schedule (the "Net Book -------- Value Statement"), prepared by Seller in good faith, of the Net --------------- Book Value (as such term is hereinafter defined) as of the close of business at September 30, 2001. If the Net Book Value as of the close of business on September 30, 2001 Sellers as set forth in the Net Book Value Statement exceeds $7,154,710.00Spreadsheet and the Paying Agent Agreement, the Closing Payment aggregate amount of Three Million Five Hundred Thousand Dollars ($3,500,000) out of which, the Transaction Expenses shall be increased deducted (the “Upfront Payment"); (ii) deposit with the Paying Agent certificates (whether physical or digital) or other formal approval from The Bank of New York Mellon (“BNYM”), which is the registered holder of the shares represented by the amount ADSs (as defined below) issued under the Deposit Agreement, dated as of November 20, 2015, by which and among the Net Book Value Buyer, BNYM, as depositary (the “Depositary”) and the owners and holders of ADSs issued thereunder (the “Deposit Agreement”) governing Buyer’s ADR program, evidencing the Upfront Shares registered in the name of the certain Sellers, as set forth in the Net Book Value Statement exceeds $7,154,710.00. If Spreadsheet and the Net Book Value as Paying Agent Agreement, reflecting such number of Buyer’s American Depositary Shares (“ADS”, each ADS representing ten (10) ordinary shares of the close Buyer of business no par value) representing aggregate value of Three Million Five Hundred Thousand Dollars ($3,500,000), at a price per Buyer ADSs equal to $1.58 (calculated based on September 30, 2001 as -------------- set forth in the Net Book Value Statement is less than $7,154,710.00, NASDAQ volume-weighted average price of Buyer ADSs for the Closing Payment shall be decreased by 60-day period preceding the date of this Agreement) (the “Upfront Shares”); and (iii) wire the amount by which of the Net Book Value as set forth in Transaction Expenses to the Net Book Value Statement is less than $7,154,710.00. As used hereinPaying Agent, "Net Book Value" shall mean (i) for payment of the total assets of Seller as set forth in a balance sheet of Seller prepared Transaction Expenses in accordance with generally accepted accounting principles the Spreadsheet to the applicable third parties listed on Schedule 4.8(ii). In the event that during one year following the Closing, the Buyer enters into a Dilutive Event, as defined in the Registration Rights Agreement (including but not limited as defined below), and at such time a Seller who received Upfront Shares holds any such shares, a price protection mechanism, as indicated in the Registration Rights Agreement will be effected with respect to cashsuch Upfront Shares, cash equivalents, accounts receivable, inventory, prepaid expenses, investments in affiliates, property under the terms and equipment (net of depreciation) and other tangible assets) minus (ii) booked goodwill ----- and other booked intangible assets minus (iii) the total ----- liabilities of Seller as conditions set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to accounts payable, other accrued liabilities, and accrued taxes (other than federal and state income taxes)) minus (iv) booked but Excluded Assets plus (v) ----- ---- booked but Excluded Liabilities plus (vi) 34% of accrued vacation ---- paytherein.

Closing Consideration. The total consideration for the --------------------- Purchased Assets shall consist of the following payments: 2.1.1 At the Closing, Buyer subject to and upon the terms and conditions of this Agreement, the Purchaser shall pay issue and deliver to Seller the Sellers an amount aggregate number of Purchaser Class A Ordinary Shares equal to $13,255,000.00, as adjusted pursuant to this Section 2.1.1 (A) the quotient obtained by dividing (a) the sum of (the "Initial Payment"). The Initial Payment shall be made by wire --------------- transfer to an account or accounts designated by Seller by written notice to Buyer given at least two “Company Valuation”) (2i) business days prior to the Closing Date. At least seven Seven Billion Three Hundred Fifty Four Million Six Hundred Fifteen Thousand Three Hundred Eighty Five U.S. Dollars (7) business days prior to the Closing Date, Seller shall also deliver to Buyer a schedule (the "Net Book -------- Value Statement"US$7,354,615,385), prepared by Seller in good faith, of plus (or minus the Net --------------- Book Value absolute value if such amount is negative) (as such term is hereinafter definedii) as of the close of business at September 30, 2001. If the Net Book Value as of the close of business on September 30, 2001 as set forth in the Net Book Value Statement exceeds $7,154,710.00, the Closing Payment shall be increased by the amount by which the Estimated Net Book Value as set forth in Working Capital exceeds the Target Net Book Value Statement exceeds $7,154,710.00. If the Net Book Value as of the close of business on September 30, 2001 as -------------- set forth in the Net Book Value Statement is less than $7,154,710.00, the Closing Payment shall be decreased by the amount by which the Net Book Value as set forth in the Net Book Value Statement is less than $7,154,710.00. As used herein, "Net Book Value" shall mean (i) the total assets of Seller as set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to cash, cash equivalents, accounts receivable, inventory, prepaid expenses, investments in affiliates, property and equipment (net of depreciation) and other tangible assets) Working Capital Amount; minus (iior plus the absolute value if such amount is negative) booked goodwill ----- and other booked intangible assets minus (iii) the total ----- liabilities of Seller as set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to accounts payableEstimated Closing Net Indebtedness, other accrued liabilities, and accrued taxes (other than federal and state income taxes)) minus (iv) booked but Excluded Assets plus the amount of any unpaid Transaction Expenses; by (vb) ----- ---- booked but Excluded Liabilities plus $10.00 (visuch quotient, the “Closing Exchange Shares”); less (B) 34% the Escrow Shares deposited in the Escrow Account in accordance with Section 1.3. Each Seller shall receive his, her or its pro rata share of accrued vacation ---- paythe Closing Exchange Shares (and any adjustments to the number of Closing Exchange Shares under Section 1.5, including in connection with any Escrow Shares released from the Escrow Account) based on the percentage of Purchased Shares owned by such Seller as compared to the total number of Purchased Shares owned by all Sellers (such percentage being each such Seller’s “Pro Rata Share”). Notwithstanding anything to the contrary contained herein, no fraction of a Purchaser Class A Ordinary Share will be issued by the Purchaser by virtue of this Agreement or the transactions contemplated hereby, and each Person who would otherwise be entitled to a fraction of a Purchaser Class A Ordinary Share (after aggregating all fractional Purchaser Class A Ordinary Shares that would otherwise be received by such Person) shall instead have the number of Purchaser Class A Ordinary Shares issued to such Person rounded down in the aggregate to the nearest whole Purchaser Class A Ordinary Share.

Closing Consideration. The total (a) In consideration for the --------------------- Purchased Assets shall consist of the following payments: 2.1.1 At sale, assignment, transfer and delivery of the Purchased Shares by the Seller to Buyer, at the Closing, Parent shall on behalf of Buyer shall pay to Seller an amount equal to $13,255,000.00deliver Seven Million Dollars (US$7,000,000), as adjusted pursuant to this in accordance with Section 2.1.1 2.3 below (the "Initial Payment"“Purchase Price”) payable Five Million Seven Hundred Fifty Thousand Dollars ($5,750,000) in shares of Parent Common Stock (the “Stock Consideration”) at an agreed upon value based upon the VWAP (the “Agreed Parent Share Price”). The Initial Payment , a senior secured promissory note of Holdings (the “Secured Note”) in the amount of One Million Dollars ($1,000,000), secured by the assets of Holdings (subject to adjustment as provided in section 2.3(c) for the amount of working capital balance, if any, on the Closing Date) (the “Final Working Capital”) and Two Hundred Fifty Thousand Dollars ($250,000) cash (the “Cash Purchase Amount”, and together with the Stock Consideration and Secured Note, the “Purchase Price”) to the Seller as follows: (i) delivery to the Seller of an aggregate of (A) the Stock Consideration less the Escrow Shares minus (B) the number of shares equal to the Estimated Working Capital Deficiency Amount divided by the Agreed Parent Share Price (the “Closing Shares”); (C) the Secured Note plus (D) the value equal to the Estimated Working Capital Excess Amount and (E) the Cash Purchase Amount; and (ii) delivery to the Escrow Agent of Fifteen (15%) percent of the Stock Consideration (the “Escrow Shares”). (b) One Hundred (100%) Percent (the “Seller Percentage”) of the Closing Shares and the Escrow Shares (upon release under the terms of the Escrow Agreement) shall be made by wire --------------- transfer distributed to an account or accounts designated by Seller. (c) In the event of a Qualified Financing, twenty-five (25%) percent of the net proceeds thereof shall be applied to repayment of principal and interest due under the Secured Note unless Seller by written notice to Buyer given shall have previously sold at least two one-million (2$1,000,000) business days of Stock Consideration on or prior to the Closing Date. At least seven (7) business days prior to the Closing Date, Seller shall also deliver to Buyer a schedule (the "Net Book -------- Value Statement"), prepared by Seller in good faith, date of closing of the Net --------------- Book Value (as such term is hereinafter defined) as of the close of business at September 30, 2001. If the Net Book Value as of the close of business on September 30, 2001 as set forth in the Net Book Value Statement exceeds $7,154,710.00, the Closing Payment shall be increased by the amount by which the Net Book Value as set forth in the Net Book Value Statement exceeds $7,154,710.00. If the Net Book Value as of the close of business on September 30, 2001 as -------------- set forth in the Net Book Value Statement is less than $7,154,710.00, the Closing Payment shall be decreased by the amount by which the Net Book Value as set forth in the Net Book Value Statement is less than $7,154,710.00. As used herein, "Net Book Value" shall mean (i) the total assets of Seller as set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to cash, cash equivalents, accounts receivable, inventory, prepaid expenses, investments in affiliates, property and equipment (net of depreciation) and other tangible assets) minus (ii) booked goodwill ----- and other booked intangible assets minus (iii) the total ----- liabilities of Seller as set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to accounts payable, other accrued liabilities, and accrued taxes (other than federal and state income taxes)) minus (iv) booked but Excluded Assets plus (v) ----- ---- booked but Excluded Liabilities plus (vi) 34% of accrued vacation ---- payQualified Financing.

Closing Consideration. The total consideration for the --------------------- Purchased Assets Acquired Shares (the "Purchase Price") and for certain covenants of -------------- the Sellers set forth below shall consist of the following paymentsbe Eighteen Million Dollars ($18,000,000.00), subject to adjustment as set forth in this Section 1.2.1 and Section 1.2.2 below. The Purchase Price shall be paid by Seller as follows: 2.1.1 (a) At the Closing, Buyer shall pay to Seller an amount equal to Sellers the sum of $13,255,000.0014,900,000.00 (after adjustment as provided below, as adjusted pursuant to this Section 2.1.1 (the "Initial Closing Payment"). The Initial Payment shall be made , by wire --------------- transfer to an account or accounts --------------- designated by Seller Sellers by written notice to Buyer given at least two (2) business days prior to the Closing Date. . (b) At least seven the Closing, Buyer also shall deposit One Million Dollars (7$1,000,000.00) business days prior to (such amount, the Closing Date"Deposit") with ------- The Chase Manhattan Bank, Seller shall also deliver to Buyer a schedule as escrow agent (the "Net Book -------- Value StatementEscrow Agent"), prepared ------------ consisting of a Five Hundred Thousand Dollar ($500,000.00) fund (the "Adjustment Escrow") and a second Five Hundred Thousand ----------------- Dollar ($500,000.00) fund (the "Indemnity Escrow"), to be held ---------------- and disposed of pursuant to the terms of this Agreement and an Escrow Agreement in substantially the form attached hereto as Exhibit A (the "Escrow Agreement"). The Escrow Agreement shall be --------- ---------------- executed and delivered by Seller in good faithBuyer and Sellers to the Escrow Agent at the Closing. Notwithstanding anything contained herein to the contrary, as between Sellers and Buyer, the fees, costs and expenses of the Net --------------- Book Value (as such term is hereinafter defined) as of Escrow Agent under the close of business at September 30, 2001. If the Net Book Value as of the close of business on September 30, 2001 Escrow Agreement shall be borne by Sellers and by Buyer as set forth in the Net Book Value Statement exceeds Escrow Agreement. (c) At the Closing, AZZ shall issue and deliver, or cause Buyer to deliver, to Sellers a number of duly authorized, validly issued, fully paid and nonassessable shares of common stock, par value $7,154,710.001.00 per share, of AZZ (rounded upward to the Closing Payment shall be increased nearest whole number of shares) (the "AZZ Shares") equal to the ---------- quotient obtained by dividing $1,800,000.00 by the amount by which the Net Book Value as set forth in the Net Book Value Statement exceeds $7,154,710.00. If the Net Book Value as average closing price of the close Common Stock as reported for New York Stock Exchange Composite Transactions for the thirty trading days ending on the date on which Buyer makes a public announcement concerning the transaction contemplated by this Agreement (the "Average Price"). Notwithstanding the foregoing, Sellers shall ------------- receive $1,800,000.00 in cash in lieu of business on September 30, 2001 as -------------- set forth in the Net Book Value Statement common stock of AZZ if the Average Price is less than $7,154,710.0018.50 per share or is more than $28.00 per share (after appropriately adjusting for any stock splits, reverse stock splits, stock dividends and similar transactions, if any, occurring between the date of this Agreement and the Closing Payment shall be decreased by the amount by which the Net Book Value as set forth in the Net Book Value Statement is less than $7,154,710.00. As used herein, "Net Book Value" shall mean (i) the total assets of Seller as set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to cash, cash equivalents, accounts receivable, inventory, prepaid expenses, investments in affiliates, property and equipment (net of depreciation) and other tangible assets) minus (ii) booked goodwill ----- and other booked intangible assets minus (iii) the total ----- liabilities of Seller as set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to accounts payable, other accrued liabilities, and accrued taxes (other than federal and state income taxesDate)) minus (iv) booked but Excluded Assets plus (v) ----- ---- booked but Excluded Liabilities plus (vi) 34% of accrued vacation ---- pay.

Closing Consideration. The total aggregate consideration for the --------------------- Purchased Assets Merger (the “Closing Consideration”) to be paid by Parent at the Closing shall consist of the following payments: 2.1.1 At the Closing, Buyer shall pay to Seller be an amount in cash, calculated pursuant to Section 4.1(b), equal to $13,255,000.00, as adjusted pursuant to this Section 2.1.1 (the "Initial Payment"). The Initial Payment shall be made by wire --------------- transfer to an account or accounts designated by Seller by written notice to Buyer given at least two (2) business days prior to the Closing Date. At least seven (7) business days prior to the Closing Date, Seller shall also deliver to Buyer a schedule (the "Net Book -------- Value Statement"), prepared by Seller in good faith, of the Net --------------- Book Value (as such term is hereinafter defined) as of the close of business at September 30, 2001. If the Net Book Value as of the close of business on September 30, 2001 as set forth in the Net Book Value Statement exceeds $7,154,710.00, the Closing Payment shall be increased by the amount by which the Net Book Value as set forth in the Net Book Value Statement exceeds $7,154,710.00. If the Net Book Value as of the close of business on September 30, 2001 as -------------- set forth in the Net Book Value Statement is less than $7,154,710.00, the Closing Payment shall be decreased by the amount by which the Net Book Value as set forth in the Net Book Value Statement is less than $7,154,710.00. As used herein, "Net Book Value" shall mean (i) the total assets of Seller as set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to cash$145,000,000, cash equivalents, accounts receivable, inventory, prepaid expenses, investments in affiliates, property and equipment (net of depreciation) and other tangible assets) minus plus (ii) booked goodwill ----- and other booked intangible assets the Company Cash, minus (iii) the total ----- liabilities Funded Debt, plus (iv) the amount, if any, by which Closing Net Working Capital exceeds the Net Working Capital Upper Boundary, minus (v) the amount, if any, by which Closing Net Working Capital is less than the Net Working Capital Lower Boundary, minus (vi) $2,000,000 (the “Purchase Price Adjustment Holdback”), minus (vii) the Holder Representative Expense Amount. The Closing Consideration shall be distributed to the holders of Seller the Company’s securities (each such holder of securities, a “Holder”) in the manner specified below and on the Payment Schedule. (i) For each outstanding share of the Company’s preferred stock, par value $0.0001 per share (the “Preferred Shares”), the Holder thereof (each, a “Preferred Holder”) shall be entitled to receive an amount equal to the quotient of (a) $2,999,997 (the “Preferred Stock Liquidation Preference”) divided by (b) the aggregate number of Preferred Shares issued and outstanding as of immediately prior to the Effective Time (the “Preferred Stock Merger Consideration”). (ii) For each outstanding share of the Company’s common stock, par value $0.0001 per share (the “Common Shares” and, together with the Preferred Shares, the “Shares”), the Holder thereof (each, a “Common Holder”) shall be entitled to receive an amount (the “Per Share Amount”) equal to the quotient of (a) the Closing Consideration, plus the aggregate exercise price of all Company Options (whether vested or unvested) that are outstanding immediately prior to the Effective Time, minus the Preferred Stock Liquidation Preference, divided by (b) the aggregate number of Common Shares (including Company Restricted Shares) issued and outstanding as of immediately prior to the Effective Time, plus the aggregate number of shares of common stock underlying the Company Options (whether vested or unvested) that are outstanding immediately prior to the Effective Time. (iii) For the avoidance of doubt, in no event shall Parent or its Affiliates be obligated to make any payments to any Holders pursuant to this Agreement that, together with the Purchase Price Adjustment Holdback (to the extent it becomes payable), in the aggregate exceed (i) the Closing Consideration as calculated in this Section 4.1 and (ii) the Earn-Out Consideration (to the extent it becomes payable up to the Earn-Out Cap) on the terms and subject to the conditions set forth in a balance sheet of Seller prepared in accordance with generally accepted accounting principles (including but not limited to accounts payableSection 4.2, other accrued liabilities, and accrued taxes (other than federal and state income taxespayments in respect of indemnification of the Holders by Parent under Section 9.2(b)) minus (iv) booked but Excluded Assets plus (v) ----- ---- booked but Excluded Liabilities plus (vi) 34% of accrued vacation ---- pay.