Common use of Post-Closing Adjustment to Closing Payment Clause in Contracts

Post-Closing Adjustment to Closing Payment. (a) As soon as practicable, but no later than August 31, 2021, Cavello shall deliver to ▇▇ ▇▇▇ the unaudited balance sheet of the Company as of June 30, 2021 (the “Final Balance Sheet”), which shall be prepared in accordance with U.S. generally accepted auditing principles, using the same accounting principles, methods, policies, practices and procedures as were used by the Company in preparing its audited balance sheet as of December 31, 2020, together with reasonable supporting documentation therefor. For a period of 30 days after delivery of the Final Balance Sheet (the “Review Period”), ▇▇ ▇▇▇ and its accountants and other representatives shall be permitted reasonable access at reasonable times to review the Company’s books and records and any work papers to the extent reasonably related to the review of the Final Balance Sheet. ▇▇ ▇▇▇ and its accountants and other representatives may make inquiries of Cavello, and its accountants and employees regarding questions concerning or disagreements with the Final Balance Sheet arising in the course of their review thereof, and Cavello shall use its, and shall cause the Company to use its, commercially reasonable efforts to cause their respective accountants and employees to cooperate with and respond to such inquiries during the Review Period. ▇▇ ▇▇▇ may dispute the Final Balance Sheet by delivering a written notice of specifically disputed items (a “Balance Sheet Dispute Notice”) to Cavello on or prior to the end of the Review Period. Cavello and ▇▇ ▇▇▇ shall use commercially reasonable efforts to resolve any such dispute during the 30-day period commencing on the date Cavello receives the Balance Sheet Dispute Notice. If such disputed matters are resolved within such 30-day period, then the Final Balance Sheet, with such changes as are agreed in writing between Cavello and ▇▇ ▇▇▇, shall be deemed final, conclusive and binding on the parties for all purposes. If Cavello and ▇▇ ▇▇▇ do not obtain a final resolution within such 30-day period, then the items in dispute shall be submitted promptly to KPMG Audit Limited or, if KPMG Audit Limited declines such engagement, another internationally-recognized accounting firm reasonably agreed to by Cavello and ▇▇ ▇▇▇ (the “Accounting Firm”) for resolution. The Accounting Firm shall be instructed to render a determination, acting as an accounting expert and not an arbitrator, of the applicable dispute and the resulting Final Balance Sheet within 30 days (or such other period of time as may be reasonably required by the Accounting Firm) after engagement of the Accounting Firm with respect to the dispute, which determination must be in writing and must set forth, in reasonable detail, the basis therefor. The determination of the Accounting Firm shall be conclusive, binding and non-appealable upon Cavello and ▇▇ ▇▇▇. If ▇▇ ▇▇▇ does not deliver a Balance Sheet Dispute Notice within 30 days of receiving the Final Balance Sheet, then the Final Balance Sheet shall be deemed to have been accepted by ▇▇ ▇▇▇. At any time prior to the end of the Review Period, ▇▇ ▇▇▇ may also confirm that it accepts the Final Balance Sheet upon written notice to Cavello, and the Review Period shall be deemed to have ended as of the date of such notice. (b) In the event that Cavello and ▇▇ ▇▇▇ submit any unresolved objections to the Accounting Firm for resolution as provided in Section 2.5(a), the fees, costs and expenses of the Accounting Firm (i) shall be paid by Cavello in the proportion that the aggregate dollar amount of such disputed items so submitted that are successfully disputed by ▇▇ ▇▇▇ (as finally determined by the Accounting Firm) bears to the aggregate dollar amount of all such items so submitted and (ii) shall be paid by ▇▇ ▇▇▇ (or ▇▇ ▇▇▇ shall cause one of its affiliates to pay) in the proportion that the aggregate dollar amount of such disputed items so submitted that are unsuccessfully disputed by ▇▇ ▇▇▇ (as finally determined by the Accounting Firm) bears to the aggregate dollar amount of all such items so submitted. (c) After the Final Balance Sheet has been finally determined pursuant to Section 2.5(a), an amount equal to 90% of the total shareholders’ equity reflected on the Final Balance Sheet (being the difference of total assets minus total liabilities) shall be multiplied by 27.7% with such product being the “Final Closing Payment.” If the Closing occurs before the Final Balance Sheet has been finally determined pursuant to Section 2.5(a) and the Final Closing Payment is greater than the Closing Payment, Cavello shall promptly wire such difference to the account designated by ▇▇ ▇▇▇ in immediately available funds. If the Closing occurs before the Final Balance Sheet has been finally determined pursuant to Section 2.5(a) and the Final Closing Payment is less than the Closing Payment, ▇▇ ▇▇▇ shall (or shall cause one of its affiliates to) wire such difference to the account designated by Cavello in immediately available funds. If the Closing occurs after the Final Balance Sheet has been finally determined pursuant to Section 2.5(a), the Final Closing Payment shall be substituted for the Closing Payment at the Closing and there shall be no adjustment to such payment after the Closing.

Post-Closing Adjustment to Closing Payment. (a) As soon as practicableWithin 90 calendar days following the Closing, but no later than August 31Purchaser may prepare and deliver to Seller a written schedule (the “Purchaser Closing Statement”) setting forth in reasonable detail Purchaser’s calculation of (i) the Closing Working Capital and Closing Working Capital Adjustment Amount, 2021(ii) the amount of the Cash Adjustment Amount, Cavello (iii) the amount of the Closing Indebtedness, (iv) the amount of the Company Service Provider Termination Expenses, (v) the amount of the Closing Transaction Expenses, and (vi) the Closing Payment. Purchaser shall deliver to ▇▇ ▇▇▇ Seller, concurrently with the unaudited balance sheet Purchaser Closing Statement, all relevant supporting documentation, including such schedules and data with respect to the determinations set forth therein as may be, in Purchaser’s determination, reasonably appropriate to support the calculations set forth therein. Following the delivery of the Purchaser Closing Statement, if applicable, Purchaser shall provide Seller and its Representatives reasonable access, during regular business hours, in such a manner as to not interfere with the normal operation of Purchaser or the Company as (subject to the execution of June 30customary work paper access letters, 2021 if requested), to work papers, books and records, and personnel and external representatives relating to the preparation of the Purchaser Closing Statement solely for the purpose of assisting Seller in its review of the Purchaser Closing Statement and the calculations contained therein. (b) If Seller disagrees with the calculations in the Purchaser Closing Statement, Seller shall notify Purchaser of such disagreement in writing (the “Final Balance SheetAdjustment Dispute Notice”), which shall be prepared in accordance with U.S. generally accepted auditing principles, using the same accounting principles, methods, policies, practices and procedures as were used by the Company in preparing its audited balance sheet as of December 31, 2020, together with reasonable supporting documentation therefor. For a period of ) within 30 calendar days after delivery of the Final Balance Sheet Purchaser Closing Statement. The Adjustment Dispute Notice must set forth in reasonable detail (i) any item on the “Review Period”), ▇▇ ▇▇▇ Purchaser Closing Statement which Seller reasonably believes has not been prepared in accordance with this Agreement and its accountants and other representatives shall be permitted reasonable access at reasonable times to review the CompanySeller’s books and records and any work papers to the extent reasonably related to the review determination of the Final Balance Sheet. ▇▇ ▇▇▇ amount of such item and its accountants (ii) Seller’s alternative calculation of the Closing Working Capital and other representatives may make inquiries of CavelloClosing Working Capital Adjustment Amount, the Cash Adjustment Amount, the Closing Indebtedness, the Company Service Provider Termination Expenses, the Closing Transaction Expenses, and its accountants and employees regarding questions concerning the Closing Payment, as the case may be, together with all relevant supporting documentation. Any item or disagreements with the Final Balance Sheet arising amount that Seller does not dispute in reasonable detail in the course of their review thereof, and Cavello shall use its, and shall cause the Company to use its, commercially reasonable efforts to cause their respective accountants and employees to cooperate with and respond to such inquiries during the Review Period. ▇▇ ▇▇▇ may dispute the Final Balance Sheet by delivering a written notice of specifically disputed items (a “Balance Sheet Adjustment Dispute Notice”) to Cavello on or prior to the end of the Review Period. Cavello and ▇▇ ▇▇▇ shall use commercially reasonable efforts to resolve any such dispute during the 30-day period commencing on the date Cavello receives the Balance Sheet Dispute Notice. If such disputed matters are resolved Notice within such 30-day period shall be final, binding, and conclusive for all purposes hereunder. In the event any such Adjustment Dispute Notice is timely provided, Purchaser and Seller shall work in good faith for a period of 30 calendar days (or such longer period as they may mutually agree) to resolve any disagreements with respect to the calculations included in the Purchaser Closing Statement that were disputed in the Adjustment Dispute Notice. If, at the end of such period, Seller and Purchaser remain unable to resolve the dispute in its entirety, then the Final Balance Sheet, with such changes as are agreed in writing between Cavello unresolved items and ▇▇ ▇▇▇, shall be deemed final, conclusive and binding on the parties for all purposes. If Cavello and ▇▇ ▇▇▇ do not obtain a final resolution within such 30-day period, then the items amounts thereof in dispute shall be submitted promptly to KPMG Audit Limited ora nationally recognized independent accounting firm, if KPMG Audit Limited declines such engagementreasonably acceptable to Purchaser and Seller, another internationally-recognized accounting firm reasonably agreed to by Cavello and ▇▇ ▇▇▇ which shall not be the independent accountants of Purchaser or the Company (the “Accounting FirmDispute Auditor”) for resolution). The Accounting Firm Dispute Auditor shall be instructed to render a determinationdetermine, acting as an accounting expert based solely on the written presentations by Seller and Purchaser, and not an arbitratorby independent review, only those items and amounts that remain then in dispute as set forth in the Adjustment Dispute Notice. In rendering its decision, the Dispute Auditor shall adhere to and be bound by the provisions of this Section 2.05(b) and the applicable dispute provisions and the resulting Final Balance Sheet within 30 days (or such other period of time as may be reasonably required by the Accounting Firm) after engagement of the Accounting Firm with respect to the dispute, which determination must be definitions set forth in writing and must set forth, in reasonable detail, the basis thereforthis Agreement. The Dispute Auditor’s determination of the Accounting Firm Closing Working Capital and Closing Working Capital Adjustment Amount, the Cash Adjustment Amount, the Closing Indebtedness, the Company Service Provider Termination Expenses, the Closing Transaction Expenses, and the Closing Payment as applicable, shall be conclusivemade within 45 days after the dispute is submitted for its determination and shall be set forth in a written statement delivered to Seller and Purchaser. A judgment of a court of competent jurisdiction selected pursuant to Section 11.09 hereof may be entered upon the Dispute Auditor’s determination. The Dispute Auditor shall have exclusive jurisdiction over, binding and resorting to the Dispute Auditor as provided in this Section 2.05(b) shall be the only recourse and remedy of the Parties against one another with respect to, those items and amounts that remain in dispute under this Section 2.05(b), and Purchaser shall not be entitled to seek indemnification or recovery of any attorneys’ fees or other professional fees incurred by Purchaser in connection with any dispute governed by this Section 2.05. The Dispute Auditor shall, in its final written determination, allocate its fees and expenses between Purchaser and Seller according to the degree to which the positions of the respective Parties are not accepted by the Dispute Auditor. Seller and Purchaser shall, and shall cause their respective Affiliates and Representatives to, cooperate in good faith with the Dispute Auditor, and shall give the Dispute Auditor access to all data and other information it reasonably requests for purposes of such resolution. In no event shall the decision of the Dispute Auditor assign a value to any item greater than the greatest value for such item claimed by either Purchaser or Seller or lesser than the smallest value for such item claimed by either Purchaser or Seller. Any determinations made by the Dispute Auditor pursuant to this Section 2.05(b) shall be final, non-appealable upon Cavello and ▇▇ ▇▇▇binding on the Parties hereto, absent manifest error or fraud. If ▇▇ ▇▇▇ does not deliver a Balance Sheet Dispute Notice within 30 days of receiving the Final Balance SheetThe Purchaser Closing Statement, then the Final Balance Sheet shall be deemed as adjusted pursuant to have been accepted by ▇▇ ▇▇▇. At any time prior to the end of the Review Period, ▇▇ ▇▇▇ may also confirm that it accepts the Final Balance Sheet upon written notice to Cavello, and the Review Period shall be deemed to have ended as of the date of such notice. (b) In the event that Cavello and ▇▇ ▇▇▇ submit any unresolved objections to the Accounting Firm for resolution as provided in this Section 2.5(a2.05b), the fees, costs and expenses of the Accounting Firm (i) shall be paid by Cavello in the proportion that the aggregate dollar amount of such disputed items so submitted that are successfully disputed by ▇▇ ▇▇▇ (as finally determined by the Accounting Firm) bears to the aggregate dollar amount of all such items so submitted and (ii) shall be paid by ▇▇ ▇▇▇ (or ▇▇ ▇▇▇ shall cause one of its affiliates to pay) in the proportion that the aggregate dollar amount of such disputed items so submitted that are unsuccessfully disputed by ▇▇ ▇▇▇ (as finally determined by the Accounting Firm) bears to the aggregate dollar amount of all such items so submitted. (c) After the Final Balance Sheet has been finally determined pursuant to Section 2.5(a), an amount equal to 90% of the total shareholders’ equity reflected on the Final Balance Sheet (being the difference of total assets minus total liabilities) shall be multiplied by 27.7% with such product being constitute the “Final Closing PaymentStatement.” If Purchaser fails to deliver a Purchaser Closing Statement within the Closing occurs before the Final Balance Sheet has been finally determined pursuant to 90 day period set forth in Section 2.5(a) and the Final Closing Payment is greater than the Closing Payment, Cavello shall promptly wire such difference to the account designated by ▇▇ ▇▇▇ in immediately available funds. If the Closing occurs before the Final Balance Sheet has been finally determined pursuant to Section 2.5(a) and the Final Closing Payment is less than the Closing Payment, ▇▇ ▇▇▇ shall (or shall cause one of its affiliates to) wire such difference to the account designated by Cavello in immediately available funds. If the Closing occurs after the Final Balance Sheet has been finally determined pursuant to Section 2.5(a2.05a), the Estimated Closing Statement shall constitute the “Final Closing Payment shall be substituted for the Closing Payment at the Closing and there shall be no adjustment to such payment after the ClosingStatement.”