Common use of Post-Closing Adjustment to Purchase Price Clause in Contracts

Post-Closing Adjustment to Purchase Price. Section 2.05 of the Agreement is hereby amended and restated in its entirety to read as follows: “The Company will calculate the Book Equity Value of the Company within ninety (90) days following the Closing Date. At that time the following adjustment to the Purchase Price will be made (the “Post Closing Adjustment Payment”) as follows: If the Cash Payment is less than One Hundred Ten Percent (110%) multiplied by the Book Equity Value, the Purchaser shall make a cash payment to the Seller equal to the difference between One Hundred Ten Percent (110%) multiplied by the Book Equity Value and the Cash Payment no later than ninety (90) days post-Closing Date; If the Cash Payment exceeds One Hundred Ten Percent (110%) multiplied by the Book Equity Value, the Seller shall make a cash payment to the Purchaser equal to the difference between the Cash Payment and One Hundred Ten Percent (110%) multiplied by the Book Equity Value. (a) Each Earn Out Payment will be in an amount up to twenty percent (20%) of the Company’s Pre-Tax Income for the Earn Out Year preceding each Earn Out Payment. (b) Notwithstanding any provision herein to the contrary, the Earn Out will be reduced by the sum of (A) reduced or increased by the surplus or deficiency in the Company’s Warranty Reserve, plus (B) any Pre-Tax Income Distributions to Seller made after the Closing Date, and plus (C) any balance due Purchaser resulting from deficiency in funds in the Charleston Operating Charge Escrow as described in section 2.03 above. (c) Notwithstanding any terms herein to the contrary Purchaser will deduct amounts due for the Earn Out Deductions from each Earn Out Payment until the Earn Out Deductions are paid in full. Upon payment in full of the Earn Out Deductions remaining Earn Out Payments will be paid to Seller as provided herein. (d) Purchaser will ensure that all financial statements prepared by or for the Company post-Closing will be in conformity to GAAP. (e) Purchaser will provide Seller with the Company’s annual financial statements beginning with the period ending December 31, 2020 and continuing through December 31, 2024. (f) Purchaser’s failure to pay any Earn Out Payment when due is a default under this Agreement entitling the Seller to seek any available remedies at law or equity, together with the recovery of all costs and fees, including attorney’s fees. The provisions of this Section 2.05 shall survive the Closing.

Post-Closing Adjustment to Purchase Price. Section 2.05 of The Closing Purchase Price shall be subject to adjustment after the Agreement is hereby amended and restated in its entirety to read Closing as follows: “The Company will calculate the Book Equity Value of the Company within : (a) As soon as practicable, but no later than ninety (90) days following the Closing Date. At that time the following adjustment to the Purchase Price will be made (the “Post Closing Adjustment Payment”) as follows: If the Cash Payment is less than One Hundred Ten Percent (110%) multiplied by the Book Equity Value, the Purchaser shall make a cash payment prepare in good faith and deliver to the Seller equal Sellers’ Representative (each of which shall be accompanied by appropriate information and documentation supporting the applicable calculation): (i) an unaudited balance sheet of the Company and its Subsidiaries as of the Closing Date prepared in accordance with GAAP consistent with the past practice of the Company (the “Closing Balance Sheet”); (ii) a schedule of the Company Indebtedness as of immediately prior to the difference between One Hundred Ten Percent Closing (110%the “Closing Company Indebtedness”); (iii) multiplied a schedule of the Cash and Cash Equivalents as of immediately prior to the Closing (“Closing Cash and Cash Equivalents”); and (iv) a statement of Working Capital, which shall set forth a reasonably detailed calculation by the Book Equity Value Purchaser of Working Capital as of the Closing Date based on the Closing Balance Sheet (the “Closing Working Capital”). Any actions taken by the Purchaser at or after the Closing shall not be taken into account for the purpose of preparing the Closing Balance Sheet and the Cash Payment no later than ninety (90) days post-Closing Date; If the Cash Payment exceeds One Hundred Ten Percent (110%) multiplied by the Book Equity Value, the Seller shall make a cash payment to the Purchaser equal to the difference between the Cash Payment and One Hundred Ten Percent (110%) multiplied by the Book Equity Value. (a) Each Earn Out Payment will be in an amount up to twenty percent (20%) of the Company’s Pre-Tax Income for the Earn Out Year preceding each Earn Out PaymentWorking Capital. (b) Notwithstanding any provision herein The Purchaser shall deliver a copy of the Closing Balance Sheet, the Closing Company Indebtedness and Closing Cash and Cash Equivalents and the calculation of the Closing Working Capital (together, the “Closing Financial Data”) to the contrarySellers’ Representative promptly after it has been prepared together, which Closing Financial Data shall be prepared in accordance with the Earn Out will be reduced applicable definitions contained herein and in accordance with GAAP consistent with the past practice of the Company and, solely to the extent not addressed by GAAP, in accordance with the sum of (A) reduced or increased by the surplus or deficiency example set forth in the Company’s Warranty Reserve, plus (B) any Pre-Tax Income Distributions to Seller made after the Closing Date, and plus (C) any balance due Purchaser resulting from deficiency in funds in the Charleston Operating Charge Escrow as described in section 2.03 aboveExhibit B hereto. (c) Notwithstanding any terms herein After receipt of the Closing Financial Data, the Sellers’ Representative shall have sixty (60) days (the “Review Period”) to review the Closing Financial Data, together with the work papers used in the preparation thereof, and have its Representatives review such Closing Financial Data. In connection with the review of the Closing Financial Data, the Purchaser shall give, and shall cause the Company and its Representatives to give, to the contrary Purchaser will deduct amounts due for Sellers’ Representative and its Representatives such access during normal business hours to the Earn Out Deductions from each Earn Out Payment until the Earn Out Deductions are paid in full. Upon payment in full Books and Records and other materials of the Earn Out Deductions remaining Earn Out Payments will be paid Company and its Subsidiaries and the personnel of, and work papers prepared by or for, the Purchaser, the Company and their respective Representatives (in each case, subject to Seller execution of customary access letters and confidentiality undertakings), including to such historical financial information relating to the Company and its Subsidiaries as provided hereinthe Sellers’ Representative or its Representatives may reasonably request, in each case, to the extent reasonably necessary to permit the timely and complete review of the Closing Financial Data in accordance with this Section 2.07(c). (d) If the Sellers’ Representative has accepted such Closing Financial Data in writing or has not given written notice addressed and delivered to the Purchaser will ensure setting forth any objection to such Closing Financial Data (a “Statement of Objections”) prior to the expiration of the Review Period, then such Closing Financial Data shall be final, conclusive and binding upon the Purchaser and the Sellers. In the event that the Sellers’ Representative delivers a Statement of Objections during the Review Period (which statement must describe in reasonable detail (including all financial statements supporting calculations and references identifying all relevant schedules and documents) the items contained in the Closing Financial Data with which the Sellers’ Representative disagrees and the basis for such disagreement), the Purchaser and the Sellers’ Representative shall use their commercially reasonable efforts to agree on the amount of Closing Working Capital, Cash and Cash Equivalents or Company Indebtedness as of immediately prior to the Closing, as applicable, and appropriate adjustments to the Closing Balance Sheet within thirty (30) days following the receipt by the Purchaser of the Statement of Objections; provided, however, that the Statement of Objections may only include objections based on (i) the failure of the calculations set forth in the Closing Financial Data to be prepared by or for in accordance with the applicable definitions contained herein and in accordance with GAAP consistent with the past practice of the Company post-Closing will be and, solely to the extent not addressed by GAAP, in conformity to GAAP. (e) Purchaser will provide Seller accordance with the Company’s annual financial statements beginning example set forth in Exhibit B hereto or (ii) mathematical errors in the computation of any amount set forth in the Closing Financial Data. Any written and executed resolution by the Purchaser and the Sellers’ Representative during the thirty (30) days after receipt by the Purchaser of the Statement of Objections shall be final, conclusive and binding. If the Purchaser and the Sellers’ Representative are unable to reach an agreement as to such amounts and adjustments within such thirty (30) day period, then solely the matters set forth in the Statement of Objections that remain in dispute shall be submitted as promptly as practicable to BDO USA, LLP, or if BDO USA, LLP is unwilling or unable to serve in such capacity, to such other independent accounting firm agreed to by the Purchaser and the Sellers’ Representative (such firm, the “Accounting Firm”), who shall resolve the matters still in dispute and adjust the Closing Financial Data to reflect such resolution; provided, however, that the Accounting Firm may not determine an amount of (w) Closing Working Capital in excess of that claimed by the Sellers’ Representative or less than that claimed by the Purchaser, (x) Cash and Cash Equivalents as of immediately prior to the Closing in excess of that claimed by the Sellers’ Representative or less than that claimed by the Purchaser or (y) Company Indebtedness as of immediately prior to the Closing in excess of that claimed by the Purchaser or less than that claimed by the Sellers’ Representative. The Purchaser and the Sellers’ Representative shall cause the Accounting Firm to make such determination within forty-five (45) days following the submission of the matter to the Accounting Firm for resolution, and such determination shall be final, conclusive and binding upon the Purchaser and the Sellers (absent fraud or manifest error) and may be entered and enforced in any court having jurisdiction. The Purchaser and the Sellers’ Representative shall instruct the Accounting Firm to (A) review only those unresolved items specifically set forth in the Statement of Objections and submitted to the Accounting Firm in the amounts claimed by the Purchaser and the Sellers’ Representative in the Closing Financial Data and the Statement of Objections, respectively, (B) make its determination based solely upon the written submissions of the Purchaser and the Sellers’ Representative (i.e., not by independent review) and (C) limit its review to whether the item in dispute is (x) calculated in accordance with the period ending December 31, 2020 applicable definitions contained herein and continuing through December 31, 2024. (f) Purchaser’s failure to pay any Earn Out Payment when due is a default under this Agreement entitling the Seller to seek any available remedies at law or equity, together in accordance with GAAP consistent with the recovery past practice of all costs the Company and, solely to the extent not addressed by GAAP, in accordance with the example set forth in Exhibit B hereto or (y) a mathematical error. Each of the Purchaser and feesthe Sellers’ Representative agree that it shall not have any right to, including attorney’s fees. The provisions and shall not, institute any Action of any kind challenging such determination or with respect to the matters that are the subject of this Section 2.05 2.07, except that the foregoing shall survive not preclude an Action to enforce such determination. The terms “Final Closing Working Capital,” “Final Closing Cash and Cash Equivalents” and “Final Closing Indebtedness” shall mean, respectively, the Closingdefinitive Closing Working Capital, Closing Cash and Cash Equivalents and Closing Indebtedness agreed to (or deemed to be agreed to) by the Purchaser and the Sellers’ Representative or the definitive Closing Financial Data resulting from the determinations made by the Accounting Firm in accordance with this Section 2.07 (in addition to those items theretofore agreed to (or deemed agreed to) by the Purchaser and the Sellers’ Representative).

Post-Closing Adjustment to Purchase Price. Section 2.05 of the Agreement is hereby amended and restated in its entirety to read as follows: “The Company will calculate the Book Equity Value of the Company within ninety (90) days following the Closing Date. At that time the following adjustment to the Purchase Price will be made (the “Post Closing Adjustment Payment”) as follows: If the Cash Payment is less than One Hundred Ten Percent (110%) multiplied by the Book Equity ValueValue exceeds the Cash Payment, the Purchaser shall make a cash payment to the Seller equal to the difference between One Hundred Ten Percent (110%) multiplied by the difference between the Book Equity Value and the Cash Payment no later than ninety (90) days post-Closing Date; If the Cash Payment exceeds One Hundred Ten Percent (110%) multiplied by the Book Equity Value, the Seller shall make a cash payment to the Purchaser equal to the difference between the Cash Payment and One Hundred Ten Percent (110%) multiplied by the Book Equity Value. (a) Each Earn Out out Payment will be in an amount up equal to twenty percent (20%) of the Company’s Pre-Tax Income for the Earn Out Year preceding each Earn Out Payment. (b) Notwithstanding any provision herein to the contrary, the Earn Out will be reduced by the sum of (A) ten percent (10%) of the Company’s Book Equity Value (B) reduced or increased by the surplus or deficiency in the Company’s Warranty Reserve, plus Reserve (BC) any Pre-Tax Income Distributions to Seller made after the Closing Date; and, and plus (Cz) any balance due Purchaser resulting from deficiency in funds in the Charleston Operating Charge Escrow as described in section 2.03 above. (c) Notwithstanding any terms herein to the contrary Purchaser will deduct amounts due for the Earn Out Deductions from each Earn Out Payment until the Earn Out Deductions are paid in full. Upon payment in full of the Earn Out Deductions remaining Earn Out Payments will be paid to Seller as provided herein. (d) Purchaser will ensure that all financial statements prepared by or for the Company post-Closing will be in conformity to GAAP. (e) Purchaser will not permit and Company, post-Closing, will not make any distributions, transfers, payment, or loans to Purchaser or any subsidiary or affiliate of Purchaser or Company which may or would prevent Company from making any Earn Out Payment on the date it is due. (f) Purchaser will provide Seller with the Company’s annual financial statements beginning with the period ending December 31, 2020 and continuing through December 31, 2024. (fg) Purchaser’s failure to pay any Earn Out Payment when due is a default under this Agreement entitling the Seller to seek any available remedies at law or equity, together with the recovery of all costs and fees, including attorney’s fees. The provisions of this Section 2.05 shall survive the Closing.

Post-Closing Adjustment to Purchase Price. Section 2.05 As soon as practicable, ----------------------------------------- but in any event within 30 days after the Closing, the Buyer shall engage ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to prepare, in accordance with GAAP (applied in a manner consistent with the Audited Financial Statements), a balance sheet of each Company (the "Closing Date Balance Sheets") as of the Agreement is hereby amended and restated in its entirety to read as follows: “The Company will calculate the Book Equity Value end of the Company within ninety (90) days following business on September 30, 1996. If the aggregate shareholders' equity as shown on the Closing Date. At that time the following adjustment to the Purchase Price will be made (the “Post Closing Adjustment Payment”) as follows: If the Cash Payment Date Balance Sheets is less than One Hundred Ten Percent $1,350,000 (110%) multiplied by such amount is referred to as the Book Equity Value"Net Worth Deficiency"), within ten business days after delivery of the Post-Closing Balance Sheets to the Companies, the Purchaser Companies shall make a cash payment to pay the Seller Buyer by wire transfer of immediately available funds an amount equal to the difference between One Hundred Ten Percent Net Worth Deficiency. If the aggregate shareholders' equity as shown on the Closing Date Balance Sheets is greater than $1,350,000 (110%) multiplied by such amount is referred to as the Book Equity Value and "Net Worth Excess"), within ten business days after delivery of the Cash Payment no later than ninety (90) days postPost-Closing Date; If Balance Sheets to the Cash Payment exceeds One Hundred Ten Percent (110%) multiplied by the Book Equity ValueCompanies, the Seller Buyer shall make a cash payment pay to the Purchaser Companies by wire transfer of immediately available funds an amount equal to the difference between the Cash Payment and One Hundred Ten Percent (110%) multiplied by the Book Equity Value. (a) Each Earn Out Payment will be Net Worth Excess. Notwithstanding anything in an amount up to twenty percent (20%) of the Company’s Pre-Tax Income for the Earn Out Year preceding each Earn Out Payment. (b) Notwithstanding any provision herein this Section 2.6 to the contrary, if there is any Net Worth Deficiency or Net Worth Excess and the Earn Out will parties hereto dispute any item contained on the Closing Date Balance Sheets, the party disputing such item shall notify the other party in writing of each disputed item, and specify the amount thereof in dispute within thirty business days after the delivery of the Closing Balance Sheets. If the Buyer and the Companies cannot resolve any such dispute which would eliminate or reduce the amount of the Net Worth Deficiency or Net Worth Excess, as applicable, then the amount to which there is no dispute promptly shall be reduced paid and the amount in dispute shall be resolved by an independent nationally recognized accounting firm which is reasonably acceptable to the Buyer and the Companies (the "Independent Accounting Firm"). The determination of the Independent Accounting Firm shall be made as promptly as practical and shall be final and binding on the parties, absent manifest error which error may only be corrected by such Independent Accounting Firm. Any expenses relating to the engagement of the Independent Accounting Firm shall be allocated between the Buyer and the Companies so that the Companies share of such costs shall be in the same proportion that the aggregate amount of the disputed amounts submitted to the Independent Accounting Firm that are unsuccessfully disputed by the sum of Companies (A) reduced or increased as finally determined by the surplus Independent Accounting Firm) bears to the total amount of such disputed amounts so submitted to the Independent Account Firm. All distributions made by the Companies prior to the Closing Date shall be deemed to have been made on or deficiency in before September 30, 1996 for purposes of this calculation regardless of when declared or made. The parties acknowledge that all profits and losses of the Company’s Warranty Reserve, plus (B) any Pre-Tax Income Distributions to Seller made Companies realized after the Closing Dateclose of business on September 30, and plus (C) any balance due Purchaser resulting from deficiency in funds in the Charleston Operating Charge Escrow as described in section 2.03 above. (c) Notwithstanding any terms herein 1996 will accrue to the contrary Purchaser will deduct amounts due benefit or detriment of the Buyer, as applicable. In this regard, for tax purposes, the Companies shall operate the Businesses as agents for the Earn Out Deductions from each Earn Out Payment until Buyer and the Earn Out Deductions are paid in full. Upon payment in full of the Earn Out Deductions remaining Earn Out Payments will be paid to Seller Buyer, as provided hereinprincipal, shall recognize all such income, profit, losses and expenses. (d) Purchaser will ensure that all financial statements prepared by or for the Company post-Closing will be in conformity to GAAP. (e) Purchaser will provide Seller with the Company’s annual financial statements beginning with the period ending December 31, 2020 and continuing through December 31, 2024. (f) Purchaser’s failure to pay any Earn Out Payment when due is a default under this Agreement entitling the Seller to seek any available remedies at law or equity, together with the recovery of all costs and fees, including attorney’s fees. The provisions of this Section 2.05 shall survive the Closing.

Post-Closing Adjustment to Purchase Price. Section 2.05 Within five business days following the earlier of (i) the fifth business day following completion of Buyer’s audit of the Agreement is hereby amended and restated in its entirety to read as follows: “The Company will calculate the Book Equity Value financial statements of the Company within ninety Business for 2011 and 2012, and (90ii) days the 120th day following the Closing Date, Buyer will cause the Closing Balance Sheet to be prepared and will deliver to Seller its calculation of Seller’s Realizable Net Closing Working Capital (the “RNCWC Adjustment Calculations”). At that time After receipt of the Closing Balance Sheet, Seller shall have fifteen business days (the “Review Period”) to review the Closing Balance Sheet. Within thirty days following Buyer’s delivery of the RNCWC Adjustment Calculations (and based on such calculations), but after the Review Period and any resolutions of disputed amounts, if applicable: (a) if the amount of Realizable Net Working Capital is greater than $10,000 (“Target RNCWC”), then Parent will issue to Seller, as an adjustment to the Purchase Price Price, a number of Parent Shares equal to (A) the amount by Realizable Net Working Capital exceeds Target RNCWC, divided by (B) twenty-five cents ($0.25). If the amount of Realizable Net Working Capital is less than Target RNCWC, then Seller will surrender to Parent, as an adjustment to the Purchase Price, a number of Parent Shares equal to (A) the amount by which Realizable Net Working Capital is less than Target RNCWC, divided by (B) twenty-five cents ($0.25). In either case, the calculation will be made rounded to the nearest whole number of Parent Shares. During the Review Period, Seller and Seller's accountants shall have full access to the relevant books and records of Buyer, the personnel of, and work papers prepared by, Buyer and/or Buyer's accountants to the extent that they relate to the Closing Balance Sheet and to such historical financial information (to the extent in Buyer's possession) relating to the Closing Balance Sheet as Seller may reasonably request. On or prior to the last day of the Review Period, Seller may object to the Closing Balance Sheet by delivering to Buyer a written statement and Buyer and Seller shall negotiate in good faith to resolve such objections within 15 business days after the delivery such objection (the “Post Closing Adjustment PaymentResolution Period”). If Seller and Buyer fail to reach an agreement with respect to all of the matters set forth in the object before expiration of the Resolution Period, then any amounts remaining in dispute (“Disputed Amounts” and any amounts not so disputed, the "Undisputed Amounts") shall be submitted for resolution to the office of an impartial nationally recognized firm of independent certified public accountants other than Seller's Accountants or Buyer's Accountants (the “Independent Accountants”) who, acting as follows: If experts and not arbitrators, shall resolve the Cash Payment is less than One Hundred Ten Percent (110%) multiplied by the Book Equity Value, the Purchaser shall Disputed Amounts only and make a cash payment any adjustments to the Seller equal to Seller’s Realizable Net Closing Working Capital, as the difference between One Hundred Ten Percent (110%) multiplied by the Book Equity Value case may be, and the Cash Payment no later than ninety (90) days post-Closing Date; If the Cash Payment exceeds One Hundred Ten Percent (110%) multiplied by the Book Equity Value, the Balance Sheet. The parties hereto agree that all adjustments shall be made without regard to materiality. The Seller shall make a cash payment to the Purchaser equal to the difference between the Cash Payment and One Hundred Ten Percent (110%) multiplied by the Book Equity Value. (a) Each Earn Out Payment will be responsible for all fees and expenses of the Independent Accountants; provided that if the Independent Accountants’ resolution of the Disputed Amounts results in an amount up to twenty percent (20%) increase in Seller’s Realizable Net Closing Working Capital of greater than 10% from the calculation of Seller’s Realizable Net Closing Working Capital based on Buyer’s last proposal regarding the Dispute Amounts, then Buyer will be responsible for all fees and expenses of the Company’s Pre-Tax Income for the Earn Out Year preceding each Earn Out PaymentIndependent Accountants. (b) Notwithstanding any provision herein to the contrary, the Earn Out will be reduced by the sum of (A) reduced or increased by the surplus or deficiency in the Company’s Warranty Reserve, plus (B) any Pre-Tax Income Distributions to Seller made after the Closing Date, and plus (C) any balance due Purchaser resulting from deficiency in funds in the Charleston Operating Charge Escrow as described in section 2.03 above. (c) Notwithstanding any terms herein to the contrary Purchaser will deduct amounts due for the Earn Out Deductions from each Earn Out Payment until the Earn Out Deductions are paid in full. Upon payment in full of the Earn Out Deductions remaining Earn Out Payments will be paid to Seller as provided herein. (d) Purchaser will ensure that all financial statements prepared by or for the Company post-Closing will be in conformity to GAAP. (e) Purchaser will provide Seller with the Company’s annual financial statements beginning with the period ending December 31, 2020 and continuing through December 31, 2024. (f) Purchaser’s failure to pay any Earn Out Payment when due is a default under this Agreement entitling the Seller to seek any available remedies at law or equity, together with the recovery of all costs and fees, including attorney’s fees. The provisions of this Section 2.05 shall survive the Closing.