Common use of Post-Closing Adjustment Clause in Contracts

Post-Closing Adjustment. (a) If at any time and from time to time from and after the Purchase Option Closing Date through the date occurring six (6) months after the Purchase Option Closing Date (or if such date is not a Business Day, the first Business Day thereafter) (such date, the “Final Adjustment Date”), there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five (5) Business Days after the delivery to Dynavax of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), (i) Dynavax shall issue to Holdings such Alternate Securities in the form specified in the Specified Issuance Notice, and (ii) Holdings shall deliver to Dynavax such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii), as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Date. (b) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax pursuant to this Section 2B(b) shall be deemed to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax Issuance.

Post-Closing Adjustment. Within fifteen (a15) If at any time business days of the ----------------------- Closing, the Company shall deliver to Parent, in a form satisfactory to Parent, financial statements and from time other documentation necessary to time from and after determine the Purchase Option Closing Date through total amount of liabilities of the date occurring six (6) months after Company outstanding as of the Purchase Option Closing Date (or if the "Closing Date Liabilities"). Parent shall have such date is not a Business Dayaccess to the Company' books and records as it deems necessary to verify the amount of such Closing Date Liabilities. Based on the Closing Date Liabilities, the first Business Day thereafterHoldback Shares payable to the Stockholders shall be reduced (the "Holdback Shares Adjustment") as follows: If the Closing occurs on or before February 4, 2000 (such datethe "Anticipated Closing Date"), the “Final Adjustment Date”)Holdback Shares payable to the Stockholders shall be reduced, there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five (5) Business Days after pro rata among the delivery to Dynavax of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), (i) Dynavax shall issue to Holdings such Alternate Securities in the form specified in the Specified Issuance Notice, and (ii) Holdings shall deliver to Dynavax such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii), as applicable, such that Stockholders based on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration their respective ownership of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled Company Stock, on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Date. (b) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, dollar for dollar basis in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to the amount by which the Closing Date Liabilities exceed $20,446,00015,000 in the aggregate if such excess has not been paid by the Stockholders personally, at their sole discretion. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later the Closing occurs after the Anticipated Closing Date (other than one (1) Business Day prior due solely to the consummation fault of such Specified Dynavax Issuance (Parent), the “Holdings Election Notice”). The failure of Holdings Holdback Shares payable to notify Dynavax pursuant to this Section 2B(b) the Stockholders shall be deemed reduced on a dollar for dollar basis in an amount equal to constitute the waiver total amount of the Closing Date Liabilities if the total amount of the Closing Date Liabilities has not been paid by Holdings the Stockholders personally, at their sole discretion. It shall not be considered the fault of its rights under Section 2B(a) with respect Parent if the Closing is delayed due to such Specified Dynavax Issuanceunanticipated issues that arise during Parent's due diligence review of the Company.

Post-Closing Adjustment. The Parent Pre-Merger Value and the Company Pre-Merger Value will each be subject to final adjustment (a) If at any time and from time to time from and after the Purchase Option Closing Date through the date occurring six (6) months after the Purchase Option Closing Date (or if such date is not a Business Day, the first Business Day thereafter) (such date, the “Final Adjustment DatePost-Closing Adjustment”) in accordance with the terms of Schedule 2.2(d), there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five (5) . Within ten Business Days after the delivery to Dynavax determination of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), Post-Closing Adjustment: (i) Dynavax shall issue to Holdings such Alternate Securities in the form specified in event that the Specified Issuance NoticeMerger Consideration (calculated prior to the Post-Closing Adjustment) exceeds the Merger Consideration (calculated after giving effect to the Post-Closing Adjustment), then: (A) an amount of Adjustment Shares with a value (based on the Merger Share Price) equal to such excess shall be released to Parent from escrow under the Escrow Agreement, and (B) all Adjustment Shares (if any) remaining in escrow under the Escrow Agreement shall be released to the Stockholder; provided, that, in the event that after the release of all of the Adjustment Shares to Parent pursuant to clause (A), a portion of such excess amount remains outstanding, the Stockholder shall transfer to Parent that number of additional shares of Parent Common Stock with a value (based on the Merger Share Price) equal to such shortfall; and (ii) Holdings shall deliver in the event that the Merger Consideration (calculated after giving effect to Dynavax such Dynavax the Post-Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than Adjustment) exceeds the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii), as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred Merger Consideration (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or calculated prior to the Final Adjustment Date. Post-Closing Adjustment), then: (bA) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, Parent shall issue and deliver to Holdings Stockholder an amount of validly issued, fully paid and nonassessable shares of Parent Common Stock with a notice value (a “Specified Issuance Notice”based on the Merger Share Price) setting forth in reasonable detail: equal to such excess (i) a description of provided, that, if the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; additional shares would cause the Stockholder’s post-Closing ownership percentage to exceed the Maximum Percentage then only such number of shares of Parent Common Stock as will cause the Stockholder to own the Maximum Percentage), and (ivB) all Adjustment Shares in escrow under the amount and form of Alternate Securities that would Escrow Agreement shall be issued to an investor participating in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior released to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax pursuant to this Section 2B(b) shall be deemed to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax IssuanceStockholder.

Post-Closing Adjustment. The “Post-Closing Adjustment” may be either a positive or negative amount, and shall be equal to (I) the Purchaser Ownership Percentage multiplied by (II) (a) (i) the Final Working Capital Adjustment Amount minus (ii) the Estimated Working Capital Adjustment Amount, plus (b) (i) the amount of Net Indebtedness set forth in the Estimated Closing Statement minus (ii) the amount of Net Indebtedness set forth in the Final Closing Statement. Any component of clause (II) set forth in the preceding sentence may be either a positive or a negative amount. If at any time the Post-Closing Adjustment is a positive amount, then Purchaser (and from time in no event the Company) shall pay in cash to time from and after the Purchase Option Closing Date through the date occurring six (6) months after the Purchase Option Closing Date Seller (or if such date one or more Approved Recipients) an amount equal to the Post-Closing Adjustment. If the Post-Closing Adjustment is not a Business Daynegative amount, then Parent (or an Affiliate designated by Parent) shall pay in cash to Purchaser (and in no event the first Business Day thereafterCompany) (such datean amount equal to the absolute value of the amount of the Post-Closing Adjustment. The Closing Purchase Price, as adjusted by the Post-Closing Adjustment, shall be the “Final Purchase Price.” The “STT Adjustment” may be either a positive or negative amount, and shall be equal to (x) the Estimated STT minus (y) the Final STT. If the STT Adjustment Date”), there is a Specified Dynavax Issuancepositive amount, as soon as practicable, then Purchaser (but in no event later than the Company) shall pay in cash to Seller (or one or more Approved Recipients) an amount equal to the STT Adjustment. If the STT Adjustment is a negative amount, then Parent (or an Affiliate designated by Parent) shall pay in cash to Purchaser (but in no event the Company) an amount equal to the absolute value of the amount of the STT Adjustment. Any payment pursuant to this Section 2.7 with respect to the Post-Closing Adjustment shall be offset against any payment pursuant to this Section 2.7 with respect to the STT Adjustment, such that a single payment is made in respect of all amounts payable pursuant to this Section 2.7, which single payment shall be made by wire transfer of immediately available funds within ten (10) Business Days after the determination of the Final Closing Statement to an account designated in writing by the Party entitled to the payment within five (5) Business Days after the delivery to Dynavax of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), (i) Dynavax shall issue to Holdings such Alternate Securities in the form specified in the Specified Issuance Notice, and (ii) Holdings shall deliver to Dynavax such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii), as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration determination of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment DateClosing Statement. (b) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax pursuant to this Section 2B(b) shall be deemed to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax Issuance.

Post-Closing Adjustment. (1) The Final Closing Date Adjusted Book Value, the Final Initial Premium, the Final Transferred Asset Value and the Final Initial Required Balance shall be determined as set forth in this Section 2.05. (2) Within five (5) Business Days of the determination of the Final Closing Date Adjusted Book Value in accordance with this Section 2.05: (a) If the Final Closing Date Adjusted Book Value is greater than the Interim Closing Date Adjusted Book Value, the Buyer shall pay to the Seller or its designee an amount equal to such excess; and (b) If the Interim Closing Date Adjusted Book Value is greater than the Final Closing Date Adjusted Book Value, the Seller shall pay to the Buyer or its designee an amount equal to such excess. (3) On the date on which the payments set forth in Section 2.05(b) are made: (a) If the Final Initial Premium exceeds the Interim Initial Premium, the Seller shall cause ELIC to, within five (5) Business Days of the determination of the Final Initial Premium in accordance with this Section 2.05, pay to the Company or its designee an amount equal to such excess; (b) If the Interim Initial Premium exceeds the Final Initial Premium, the Buyer shall cause the Company to, within five (5) Business Days of the determination of the Final Initial Premium in accordance with this Section 2.05, pay to ELIC or its designee an amount equal to such excess; (c) If the aggregate Final Transferred Asset Value exceeds the aggregate Interim Transferred Asset Value, the Buyer shall cause the Company to, within five (5) Business Days of the determination of the Final Transferred Asset Value in accordance with this Section 2.05, pay to ELIC or its designee an amount equal to such excess; and (d) If the aggregate Interim Transferred Asset Value exceeds the aggregate Final Transferred Asset Value, the Seller shall cause ELIC to, within five (5) Business Days of the determination of the Final Transferred Asset Value in accordance with this Section 2.05, pay to the Company or its designee an amount equal to such excess. For the avoidance of doubt, the aggregate payments (if any) required by (x) the Company, pursuant to Section 2.05(c)(ii) and/or Section 2.05(c)(iii), on the one hand and (y) ELIC, pursuant to Section 2.05(c)(i) and/or Section 2.05(c)(iv), on the other hand, may be net settled against one another. (4) Any payment required to be made by any Person pursuant to this Section 2.05 shall incur interest at any time and from time to time the Interest Rate, for the period from and including the Interim True-Up Date to but not including the date such payment is made, and will be made in cash and/or Eligible Assets valued at Fair Market Value as of the date of payment as estimated in good faith by the Payor, and reasonably acceptable to the Payee. For purposes of making any payment hereunder, the Payor shall estimate in good faith the Fair Market Value of any Eligible Assets to be transferred in connection therewith and each of the Parties shall use reasonable best efforts to agree to the actual Fair Market Value as promptly as possible thereafter in a manner consistent with, and based upon, the Fair Market Value Methodologies attached as Schedule K to the Reinsurance Agreement, and (x) if the Fair Market Value of any such Eligible Assets is greater than the estimate made by the Payor, the Payee shall, and (y) if the Fair Market Value of any such Eligible Assets is less than the estimate made by the Payor, the Payor shall, make any subsequent payments that may be required to address such difference in a reasonably prompt manner. (5) No later than ninety (90) days after the Purchase Option Closing Date, the Buyer shall deliver to the Seller a statement (the “Subject Closing Statement”) setting forth (i) a balance sheet of the Company as of the Closing Date through prepared in accordance with the date occurring six Agreed Accounting Principles and showing the Buyer’s calculation of the Closing Date Adjusted Book Value, (ii) the Buyer’s calculation of the Initial Premium, (iii) the Buyer’s calculation of the Transferred Asset Value and (iv) the Buyer’s calculation of the Initial Required Balance. The Subject Closing Statement will be prepared as of the Effective Time, in good faith in accordance with the Agreed Accounting Principles and the Milliman CTE Model and Calculation Methodologies and will be in the same format as the Estimated Closing Statement. In connection with the Buyer’s preparation of the Subject Closing Statement, the Seller shall provide the Buyer and its Representatives with such access to the employees and Representatives (including Milliman) of the Seller and its Affiliates and to such documentation, records and other information of the Seller or any of its Affiliates as the Buyer or any of its Representatives may reasonably request; provided, that such access does not unreasonably interfere with the conduct of the business of the Seller or its Affiliates; provided, further, that the independent accountants and actuaries of the Seller will not be obligated to make any work papers available to the Buyer, unless and until the Buyer has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants and actuaries, as applicable. (6) months The Seller shall have thirty (30) days after the Purchase Option date on which the Subject Closing Date Statement is delivered to it to review the Subject Closing Statement and the calculations set forth therein (or if the “Review Period”). In furtherance of such date is not a Business Dayreview, the first Business Day thereafterBuyer shall provide the Seller and its Representatives with such access to the employees and Representatives of the Buyer and to such documentation, records and other information of the Buyer that the Seller or any of its Representatives may reasonably request; provided, that such access does not unreasonably interfere with the conduct of the business of the Buyer or its Affiliates; provided, further, that the independent accountants and actuaries of the Buyer will not be obligated to make any work papers available to the Seller, unless and until the Seller has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants and actuaries, as applicable. (a) If the Seller disagrees with the Subject Closing Statement (such dateincluding any amount or computation set forth therein), the Seller may, on or prior to the last day of the Review Period, deliver a notice to the Buyer setting forth, in reasonable detail, each disputed item or amount and the basis for the Seller’s disagreement therewith (the “Final Adjustment DateDispute Notice”). The Dispute Notice shall set forth, with respect to each disputed item or amount, the Seller’s position as to the correct amount or computation that should have been included in the Subject Closing Statement. The Parties will pay any undisputed amount upon receipt of the Subject Closing Statement in accordance with the requirements set forth in Section 2.05(b). (b) If no Dispute Notice is received by the Buyer with respect to any matter in the Subject Closing Statement on or prior to the last day of the Review Period, the amount or computation with respect to such matters as set forth in the Subject Closing Statement shall be deemed accepted by the Seller, whereupon the amount or computation of such matter or matters shall be final and binding on the Parties. (c) For a period of thirty (30) days (the “Resolution Period”) beginning on the date that the Buyer receives a Dispute Notice, if any, the Buyer and the Seller shall endeavor in good faith to resolve by mutual agreement all matters identified in the Dispute Notice. In the event that the Parties are unable to resolve by mutual agreement any matter in the Dispute Notice within such Resolution Period, the Buyer and the Seller shall, within thirty (30) days of the expiration of the Resolution Period, jointly engage (A) an accounting firm of national reputation as mutually agreed by the Parties (the “Independent Accounting Firm”), there is to make a Specified Dynavax Issuancedetermination with respect to all matters in dispute, other than with respect to the calculation of the ▇▇▇▇▇▇▇▇ ▇▇ VA CTE70 Amount, the Milliman Reinsurance CTE61.1 Amount or the Initial Premium, or (B) with respect to the calculation of the ▇▇▇▇▇▇▇▇ ▇▇ VA CTE70 Amount, the Milliman Reinsurance CTE61.1 Amount or the Initial Premium, an actuarial firm of national reputation, as soon mutually agreed by the Parties (the “Independent Actuary”); provided, that if no firm is willing or able to serve, unless otherwise agreed by the Parties, such dispute shall be resolved in accordance with Section 14.10. (d) The Seller and the Buyer will direct the Independent Accounting Firm or the Independent Actuary, as practicableapplicable, but to render a determination within thirty (30) days after its retention, and the Seller and the Buyer and their respective employees and Representatives will cooperate with the Independent Accounting Firm and the Independent Actuary, as applicable, during its engagement. The Seller, on the one hand, and the Buyer, on the other hand, shall promptly (and in no any event later than within ten (10) Business Days) after the Independent Accounting Firm’s or the Independent Actuary’s engagement, as applicable, each submit to the Independent Accounting Firm or Independent Actuary their respective computations of the disputed items or amounts identified in the Dispute Notice and information, arguments and support for their respective positions, and shall concurrently deliver a copy of such materials to the other Party. Each Party shall then be given an opportunity to supplement the information, arguments and support included in its initial submission with one additional submission to respond to any arguments or positions taken by the other Party in such other Party’s initial submission, which supplemental information shall be submitted to the Independent Accounting Firm or Independent Actuary, as applicable (with a copy thereof to the other Party), within five (5) Business Days after the delivery first date on which both parties have submitted their respective initial submissions to Dynavax of a Holdings Election Notice (the Independent Accounting Firm or Independent Actuary, as defined below) (such date, the “Adjusted Securities Payment Date”), (i) Dynavax shall issue to Holdings such Alternate Securities in the form specified in the Specified Issuance Notice, and (ii) Holdings shall deliver to Dynavax such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, applicable. The Independent Accounting Firm or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)Independent Actuary, as applicable, shall thereafter be permitted to request additional or clarifying information from the Parties, and each of the Parties shall cooperate and shall cause their Representatives to cooperate with such that requests of the Independent Accounting Firm or Independent Actuary, as applicable. The Independent Accounting Firm or Independent Actuary, as applicable, shall determine, based solely on the materials so presented by the Parties and upon information received in response to such requests for additional or clarifying information and not by independent review, only those issues in dispute specifically set forth in the Dispute Notice and shall render a written report to the Seller and the Buyer (each, an “Adjustment Report”) in which the Independent Accounting Firm or Independent Actuary, as applicable, shall, after considering all matters set forth in the Dispute Notice, determine what adjustments, if any, should be made to the amounts and computations set forth in the Subject Closing Statement solely as to the disputed items or amounts set forth in the Dispute Notice and shall determine the appropriate Closing Date Adjusted Securities Payment Date Holdings Book Value, Initial Premium, Transferred Asset Value and the Initial Required Balance on that basis. (e) The Adjustment Report shall own Alternate Securitiesset forth, in reasonable detail, the Independent Accounting Firm’s or Independent Actuary’s, as applicable, determination with respect to each of the disputed items or amounts specified in the Dispute Notice, and the revisions, if any, to be made to the Subject Closing Statement, together with all other securities of Dynavax issuedsupporting calculations. In resolving any disputed item or amount, or other consideration transferred (including the Dynavax Promissory Note Independent Accounting Firm and the amounts payable pursuant Independent Actuary (A) shall be bound to the principles of this Section 2(b)(b)(ii)), to Holdings pursuant to 2.05 and the terms of this Agreement, including whether the Subject Closing Statement was prepared in accordance with the Milliman CTE Model and Calculation Methodologies, as applicable, (B) shall limit its review to which Holdings is entitled matters specifically set forth in consideration of the transfer Dispute Notice and (C) shall not assign a value to Dynavax of any matter higher than the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For highest value for such matter claimed by either Party or less than the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Datelowest value for such matter claimed by either Party. (bf) Not later than five (5) Business Days prior All fees and expenses relating to the consummation work of a Specified Dynavax Issuancethe Independent Accounting Firm and the Independent Actuary shall be paid by the Party (that is, Dynavax shallthe Seller or the Buyer) whose position with respect to the matter in dispute is furthest from the Independent Accounting Firm’s or Independent Actuary’s, as applicable, final determination. Each Adjustment Report, absent fraud or manifest error, shall be expert determinations under New York law governing expert determination and appraisal proceedings. Any claim, dispute or controversy arising out of or relating to the final determinations of the Independent Accounting Firm or the Independent Actuary, including enforcement of such final determinations, shall be resolved in accordance with Section 13, deliver to Holdings a notice 14.10. (a “Specified Issuance Notice”7) setting forth in reasonable detail: (i) a description The final form of the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax Subject Closing Statement as finally determined pursuant to this Section 2B(b) shall be deemed 2.05 is referred to constitute herein as the waiver by Holdings “Final Closing Statement,” the Closing Date Adjusted Book Value calculated therefrom is referred to as the “Final Closing Date Adjusted Book Value,” the Initial Premium calculated therefrom is referred to as the “Final Initial Premium,” the Transferred Asset Value calculated therefrom is referred to as the “Final Transferred Asset Value” and the Initial Required Balance calculated therefrom is referred to as the “Final Initial Required Balance.” (8) Upon the final determination of its rights the Final Initial Required Balance, the Parties agree to promptly make any necessary adjustments under Section 2B(a5.8(e) with respect of the Reinsurance Agreement to such Specified Dynavax Issuancethe extent not reflected in any prior adjustments.

Post-Closing Adjustment. The Post-Closing Adjustment shall be paid to Parent or to the Company Holders as follows: (ai) If at any time and from time to time from and after the Purchase Option Post-Closing Date through the date occurring six (6) months after the Purchase Option Closing Date (or if such date is not a Business Day, the first Business Day thereafter) (such date, the “Final Adjustment Date”), there is a Specified Dynavax Issuancepositive amount, as soon as practicable, but in then Parent shall promptly (and no event later than five (5) Business Days after following final determination thereof) pay to each Company Holder through the delivery to Dynavax of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), (i) Dynavax shall issue to Holdings such Alternate Securities in the form specified in the Specified Issuance Notice, and (ii) Holdings shall deliver to Dynavax such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii), as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Date. (b) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of the form and terms of the Additional Dynavax Securities to be issued Paying Agent pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating Paying Agent Agreement in the Specified Dynavax Issuance upon payment to Dynavax of cash an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(athe product of (A) with respect to a the Post-Closing Adjustment multiplied by (B) such Company Holder’s Specified Dynavax Issuance, Holdings, Percentage in accordance with Section 13the instructions provided in such Company Holder’s Letter of Transmittal; provided that, shall deliver any amount to Dynavax be paid to an Optionholder or to a notice holder of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax Company Restricted Stock pursuant to this paragraph shall instead be paid to the Surviving Corporation and then promptly (but in no event later than four (4) Business Days after such determination) remitted by the Surviving Corporation to any such Optionholder or holder of Company Restricted Stock by check, direct deposit or wire transfer of immediately available funds. (ii) If the Post-Closing Adjustment is a negative amount, then, subject to the Letter Agreement, Parent and the Company Holders’ Representative shall promptly (and no later than four (4) Business Days following the final determination thereof) provide a joint written instruction to the Escrow Agent to deliver promptly from the Adjustment Escrow Account to Parent an amount equal to the lesser of the Post-Closing Adjustment and the Adjustment Escrow Amount, up to the full amount of the Adjustment Escrow Amount. (iii) If the Post-Closing Adjustment is zero, no payment in respect thereof will be made. (iv) Payments of the Post-Closing Adjustment as a result of this Section 2B(b) shall 3.13 will be deemed adjustments to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax IssuanceMerger Consideration.

Post-Closing Adjustment. (a) If at any time and from time to time from and Within 30 days after the Purchase Option Closing Date through the date occurring six OBWC notice of change (6i.e., Form 816) months after the Purchase Option Closing Date (or if such date is not a Business Day, the first Business Day thereafter) (such date, the “Final Adjustment Date”), there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five (5) Business Days after the delivery sent to Dynavax of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), (i) Dynavax shall issue to Holdings such Alternate Securities in the form specified in the Specified Issuance Notice, and (ii) Holdings shall deliver to Dynavax such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii), as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration Ohio employers of the transfer Business, Buyer shall cause to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on prepared a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Date. (b) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) schedule setting forth in reasonable detailthe following: (i) a description of each Disenrolling Employer and the form and terms of annual workers' compensation premiums associated with such Disenrolling Employer (the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”"Lost Annual Premiums"); (ii) the price at lost revenue of CIC caused by the Open Enrollment Period, which amount shall be determined by multiplying the Alternate Securities will be issued pursuant to total amount of the Specified Dynavax IssuanceLost Annual Premiums by 6.2% (the "Lost Revenue"); and (iii) and the estimated date total amount of issuance the adjustment to the Purchase Price, which amount shall be determined by multiplying the Lost Revenue by a fraction, the numerator of such Alternate Securities; which shall be $5,750,000 and the denominator of which shall be $14,068,500 (iv) the amount and form of Alternate Securities that would "Post-Closing Purchase Price Adjustment"). The Post-Closing Purchase Price Adjustment shall be issued applied to an investor participating in reduce the Specified Dynavax Issuance upon payment to Dynavax of an six Deferred Payments dollar-for-dollar. An amount equal to $20,446,000one-sixth of the Post-Closing Purchase Price Adjustment shall be applied to reduce each Deferred Payment. In all cases, the Post-Closing Purchase Price Adjustment shall be applied to reduce a Deferred Payment after the application of the credit against such Deferred Payment described in Section 2.7, below. If Holdings elects for any year the amount of the Post-Closing Purchase Price Adjustment to exercise its rights under Section 2B(a) be applied for that year is not so applied (for example, because the credit against such Deferred Payment for that year plus the Post-Closing Purchase Price Adjustment applied for that year exceeds the Deferred Payment due for that year), then any unapplied amount shall be carried-over and applied in the following year, with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice the intention of such election not later than one (1) Business Day prior the parties that the entire amount of the Post-Closing Purchase Price Adjustment be applied to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax pursuant to this Section 2B(b) shall be deemed to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax IssuanceDeferred Payments.

Post-Closing Adjustment. (a) If at any time and from time to time from and Within 45 days after the Purchase Option Closing Date through the date occurring six (6) months after the Purchase Option Closing Date (or if such date is not a Business DayDate, the first Business Day thereafter) (such date, Buyer and each of the “Final Adjustment Date”), there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five (5) Business Days after Sellers shall have the delivery right to Dynavax of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), (i) Dynavax shall issue to Holdings such Alternate Securities in review the form specified in books and records of the Specified Issuance Notice, Acquired Entities and any other relevant books and records maintained by the Acquired Entities and (ii) Holdings shall deliver to Dynavax such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, determine whether the Estimated Adjusted Purchase Price is correct based on the Buyer’s or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)Sellers’ determination, as applicable, such per good faith calculations, that on the value of the amounts included in the Adjusted Securities Payment Purchase Price Notice are accurate as of the Closing Date. In the event any of the Parties determines that the Adjusted Purchase Price is not accurate, it shall prepare and deliver to the other Parties within 45 days after the Closing Date Holdings shall own Alternate Securitiesa written statement (an “Adjustment Statement”) setting forth, together with all other securities in reasonable detail, a calculation of Dynavax issued, or other consideration transferred a proposed revised Adjusted Purchase Price (including the Dynavax Promissory Note a “Revised Adjusted Purchase Price”) and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration amount of the transfer to Dynavax of difference between the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax Estimated Adjusted Purchase Price and Holdings such Revised Adjusted Purchase Price (the “Adjustment Amount”) and shall be settled on a net basis. For assist the avoidance of doubt, other Parties in verifying the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final amounts set forth in such Adjustment DateStatement. (b) Not later than five The Buyer or the Sellers may dispute all or any portion of the calculation of such Revised Adjusted Purchase Price and the related Adjustment Amount by written notice (5the “Dispute Notice”) Business Days prior to the consummation other Party within 30 days of the date of receipt of the related Adjustment Statement provided to such Party pursuant to Section 2.4(a) setting forth, in reasonable detail, the basis for the dispute. If the Parties do not agree on the calculation of such Adjustment Amount within 30 days of any related Dispute Notice, the Buyer and the Sellers will select (within 10 days of the expiration of that 30-day period) an accounting firm mutually acceptable to them to resolve any remaining objections. If the Buyer and the Sellers are unable to agree on the choice of an accounting firm within such 10-day period, they will select, within an additional 10 days, a Specified Dynavax Issuancenationally-recognized accounting firm by lot (after excluding their respective regular outside accounting firms) that is a member of the Securities and Exchange Commission’s Practice Division of the American Institute of Certified Public Accountants. The determination of the Revised Adjusted Purchase Price by the accounting firm so selected will be set forth in writing and will be conclusive and binding upon the Buyer and the Sellers for purposes of determining adjustments to the Purchase Price pursuant to this Section 2.4. The cost and expense of such accounting firm shall be borne equally by and between the Buyer and the Sellers. The Revised Adjusted Purchase Price shall be as agreed to by the Parties or determined by an appointed accounting firm in accordance with this Section 2.4, Dynavax shallas the case may be. Such Revised Adjusted Purchase Price as so agreed or determined or, in the event no Adjustment Statement is delivered in accordance with Section 132.4(a), deliver the Estimated Adjusted Purchase Price shall be deemed and referred to Holdings a notice (a herein as the “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description Final Adjusted Purchase Price.” If the amount of the form and terms Final Adjusted Purchase Price is less in value than the amount of Estimated Adjusted Purchase Price, then the Sellers shall pay to the Buyer the amount of the Additional Dynavax Securities to be issued pursuant difference between the Estimated Adjusted Purchase Price and the Final Adjusted Purchase Price within two (2) business days by wire transfer of immediately available funds. If the amount of the Final Adjusted Purchase Price is greater in value than the amount of Estimated Adjusted Purchase Price, then the Buyer shall pay to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) Sellers the amount of the difference between the Final Adjusted Purchase Price and form the Estimated Adjusted Purchase Price within two (2) business days by wire transfer of Alternate Securities that would be issued to an investor participating immediately available funds. (c) The Revised Adjusted Purchase Price and any adjustments in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, thereof determined in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax pursuant to this Section 2B(b) 2.4 shall be deemed to constitute made in accordance with GAAP and no adjustments shall be made for changes in any Exchange Rates in effect after the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax IssuanceClosing Date.

Post-Closing Adjustment. (a) If at any time and from time to time from and after the Purchase Option Closing Date through the date occurring six (6) months after the Purchase Option Closing Date (or if such date is not a Business Day, the first Business Day thereafter) (such date, the “Final Adjustment Date”), there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five (5) Business Days after the delivery to Dynavax of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), After Closing: (i) Dynavax if the Final Adjustment Amount is positive, then, within five Business Days following the determination of the Final Adjustment Amount in accordance with Section 2.06, (A) Parent shall issue deliver the Post-Closing Adjustment Increase Amount, by wire transfer of immediately available funds, to Holdings such Alternate Securities an account or accounts designated by the Payments Administrator, for distribution to the Stockholders in the form specified in the Specified Issuance Noticeaccordance with each Stockholder’s Common Pre-Contribution Proportionate Share, and (B) Parent and the Stockholder Representative shall deliver a joint instruction to the Escrow Agent to distribute the remaining Adjustment Escrow Amount on deposit in the Escrow Account, by wire transfer of immediately available funds, to an account or accounts designated by the Payments Administrator for further distribution to the Stockholders in accordance with each Stockholder’s Common Pre-Contribution Proportionate Share; and (ii) Holdings if the Final Adjustment Amount is negative, then, within five Business Days following the determination of the Final Adjustment Amount in accordance with Section 2.06, Parent and the Stockholder Representative shall deliver a joint instruction to Dynavax the Escrow Agent to distribute from any remaining Adjustment Escrow Amount in the Escrow Account by wire transfer of immediately available funds (A) the Post-Closing Adjustment Decrease Amount to the account or accounts designated by Parent in such Dynavax Closing Sharesinstructions and (B) the remaining Adjustment Escrow Amount, Dynavax Closing Warrantsif any, Alternate Closing Securities, or other securities on deposit in the Escrow Account following the payment contemplated by clause (A) of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii), as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a2.05(c)(ii) following to an account or accounts designated by the Payments Administrator for further distribution to the Stockholders in accordance with each Specified Dynavax Issuance that occurs after Stockholder’s Common Pre-Contribution Proportionate Share. If the date of this Agreement and remaining Adjustment Escrow Amount in the Escrow Account is insufficient to cover the entire Post-Closing Adjustment Decrease Amount payable to Parent pursuant hereto, each Stockholder, on or prior to the Final same date as the Escrow Agent distributes the remaining Adjustment Date. (b) Not later than five (5) Business Days prior Escrow Amount in the Escrow Account to the consummation of a Specified Dynavax IssuanceParent, Dynavax shall, in accordance with Section 13, deliver shall pay an amount to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description Parent equal to such Stockholder’s Common Pre-Contribution Proportionate Share of the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance amount of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax pursuant to this Section 2B(b) shall be deemed to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax Issuancedeficiency.

Post-Closing Adjustment. (a) If at any time and from time to time from and after the Purchase Option Closing Date through the date occurring six (6) months after the Purchase Option Closing Date (or if such date is not a Business Day, the first Business Day thereafter) (such date, the “Final Adjustment Date”), there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five (5) Business Days after the delivery to Dynavax of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), (i) Dynavax shall issue to Holdings such Alternate Securities in the form specified in the Specified Issuance Notice, and (ii) Holdings shall deliver to Dynavax such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii), as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Date. (b) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to 5 Amended and Restated Purchase Option Agreement $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax pursuant to this Section 2B(b) shall be deemed to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax Issuance.

Post-Closing Adjustment. (a) If at any time and from time to time from and after Following the Purchase Option determination of the components of the Closing Date through Statement, if the date occurring six (6) months after Final Closing Adjustment Amount as calculated in accordance with this Section 2.06 is negative, then Buyer shall pay the Purchase Option absolute value of the Final Closing Adjustment Amount in cash to Seller. Following the determination of the components of the Closing Date (or Statement, if such date the Final Closing Adjustment Amount as calculated in accordance with this Section 2.06 is not positive, then Buyer shall be entitled to receive a Business Day, payment in cash out of the first Business Day thereafter) (such date, the “Final Adjustment Date”), there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five (5) Business Days after the delivery to Dynavax of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), (i) Dynavax shall issue to Holdings such Alternate Securities then available funds in the form specified General Escrow Fund in an amount equal to the Specified Issuance Noticeabsolute value of the Final Closing Adjustment Amount, and (ii) Holdings Buyer and Seller shall deliver a joint direction instructing the Escrow Agent to Dynavax make such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, or other securities of Dynavax issued payment to Buyer. All payments pursuant to this Agreement, Section 2.06(e) shall be made by wire transfer of immediately available funds to an account designated in advance by Seller or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)Buyer, as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and made on or prior to the Final Adjustment Date. fifth (b) Not later than five (55th) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detailDay following: (iA) a description the 30-day period following Buyer’s delivery of the form and terms of the Additional Dynavax Securities to be issued Closing Date Statement pursuant to the Specified Dynavax Issuance (Section 2.06(b) if Seller does not timely dispute such Additional Dynavax Securities, the “Alternate Securities”amounts pursuant to Section 2.06(d)(i); (iiB) the price at which date of Seller’s and Buyer’s mutual determination of Final Closing Adjustment Amount in the Alternate Securities will be issued event Seller timely disputes such amounts pursuant to Section 2.06(d)(i) and Seller’s and Buyer’s differences are resolved without the Specified Dynavax Issuance; (iii) the estimated date engagement of issuance of such Alternate Securitiesan Independent Accountant pursuant to Section 2.06(c)(ii); and (ivC) the amount and form date of Alternate Securities that would be issued the Independent Accountant’s determination of Final Closing Adjustment Amount pursuant to an investor participating Section 2.06(d)(iii) in the Specified Dynavax Issuance upon payment event Seller timely disputes such amounts pursuant to Dynavax of an amount equal Section 2.06(d)(i) and Seller and Buyer are unable to $20,446,000. If Holdings elects resolve their differences pursuant to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”2.06(d)(ii). The failure amount of Holdings any Final Closing Adjustment Amount, as the case may be, shall bear interest from and including the Closing Date to notify Dynavax pursuant but excluding the date of payment at a rate per annum equal to this Section 2B(b) shall be deemed to constitute the waiver rate of interest published by Holdings The Wall Street Journal as the “prime rate” at large U.S. money center banks on the Closing Date, calculated on the basis of its rights under Section 2B(a) with respect to such Specified Dynavax Issuancea 365 day year and the actual number of days elapsed, without compounding.

Post-Closing Adjustment. (a) If at any time and from time to time from and As soon as practicable after the Purchase Option Closing Date through Financial Statements become available and the date occurring six procedures contemplated by paragraph (6c) months after below are completed (the Purchase Option Closing Date "Adjustment Date"): (i) In the event that the Total Merger Consideration exceeds the Initial Merger Consideration, ▇▇▇▇▇▇▇▇ shall deliver to the Escrow Agent additional ▇▇▇▇▇▇▇▇ Common and Preferred Stock having a Value equal to (A) the excess of the Total Merger Consideration over the Initial Merger Consideration, plus (B) interest at 8% per annum on the excess of the Total Merger Consideration over the Initial Merger Consideration from the Effective Time of the Merger. The composition of the number of ▇▇▇▇▇▇▇▇ Common Shares and ▇▇▇▇▇▇▇▇ Preferred Shares to be deposited shall be pro rata to the elections of the Shareholders described in Section 2.2(a) and made in the Shareholder Agreements. (ii) In the event that the Total Merger Consideration is less than the Initial Merger Consideration, ▇▇▇▇▇▇▇▇ shall have the right to recover first from the Initial Payment Funds and second, in the event the Initial Payment Funds are exhausted, from the Shareholders, pursuant to the Shareholder Agreements, and in accordance with the Shareholders' respective elections and Shares: ▇▇▇▇▇▇▇▇ Common and Preferred Stock and/or cash having a Value equal to (i) the excess of the Initial Merger Consideration over the Total Merger Consideration plus (ii) interest at 8% per annum on the amount of such excess from the Effective Time of the Merger. If a Shareholder's Share of the Total Merger Consideration shall be different than such Shareholders' Share of the Initial Merger Consideration, ▇▇▇▇▇▇▇▇ and the Shareholders Representatives shall jointly give such instructions to the Escrow Agent and the Shareholders, and take such other actions, as shall be reasonably necessary in order to cause the deliveries of ▇▇▇▇▇▇▇▇ Preferred and Common Shares and cash in lieu of fractional shares contemplated by this Section 2.4(a) to be made to and/or by the Shareholders in such manner as will result in each Shareholder receiving such Shareholder's Share of the Total Merger Consideration. (b) In lieu of delivering any fractional ▇▇▇▇▇▇▇▇ Common or if such date is not Preferred Shares pursuant to clause (a) of this Section 2.4, ▇▇▇▇▇▇▇▇ or the Shareholders, as the case may be, shall deliver an amount of cash determined by multiplying the Value of one ▇▇▇▇▇▇▇▇ Common or Preferred Share, as the case may be, by the fraction of a Business Dayshare otherwise deliverable. (c) The Shareholders Representatives shall cause, at Chiquita's expense, the first Business Day thereafter) (such dateClosing Financial Statements, together with their calculation of the “Final Adjustment Date”)Total Merger Consideration, there is a Specified Dynavax Issuance, to be delivered to ▇▇▇▇▇▇▇▇ as soon as practicable, but in no event later than five (5) Business Days after the delivery to Dynavax of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), (i) Dynavax shall issue to Holdings such Alternate Securities in the form specified in the Specified Issuance Notice, and (ii) Holdings shall deliver to Dynavax such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii), as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Date. (b) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one week after the Closing. The Shareholders Representatives shall cause, at Chiquita's expense, the Closing Financial Statements to be audited by, and accompanied by the unqualified report thereon of the firm of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (1) Business Day prior except the report relating to the consummation Closing Financial Statements of Midwest may be qualified to the same extent as the report relating to the 1997 Financial Statements of Midwest). Such report shall state that the Closing Financial Statements present fairly, in all material respects, the financial condition of the Companies as of June 30, 1997 and the results of their operations for the period from February 28, 1997 until June 30, 1997 in conformity with GAAP consistently applied (or from August 31, 1996 to June 30, 1997 in the case of Midwest) and in accordance with consistently applied accounting policies and methods, and the accounting policies and procedures set forth in the attached Schedule 4. The report will be accompanied by a separate statement by ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP that the Total Merger Consideration has been determined in accordance with the provisions of this Agreement. ▇▇▇▇▇▇▇▇ shall have 30 days after delivery of the Closing Financial Statements to notify the Shareholders Representatives of any disagreement ▇▇▇▇▇▇▇▇ may have with the Shareholders Representatives' calculation of the Total Merger Consideration and/or with any amount in or underlying any of the Closing Financial Statements or the 1997 Financial Statements or the principles or methods for determining such amount (including that such amount was not determined in conformity with GAAP consistently applied). If there is no such disagreement, the Total Merger Consideration shall be as calculated by the Shareholders Representatives, and the Post- Closing Adjustment shall thereupon be carried out in the manner provided in Sections 2.4(a) through 2.4(b). If ▇▇▇▇▇▇▇▇ notifies the Shareholders Representatives of its disagreement, ▇▇▇▇▇▇▇▇ and the Shareholders Representatives will endeavor in good faith to resolve the disagreement. If such disagreement shall not have been resolved within 15 days of Chiquita's notice of disagreement, either party shall be entitled to submit the disagreement to the independent accounting firm of Price Waterhouse LLP (Chicago office), which shall resolve the disagreement by reporting on, and shall limit its review to, (A) whether, in its opinion, the amounts in the Closing Financial Statements or the 1997 Financial Statements as to which there is disagreement were determined in conformity with GAAP consistently applied and in accordance with consistently applied accounting policies and methods and the accounting policies and procedures set forth in the attached Schedule 4 and, if not, what adjustments would be necessary in order for it to be able to render such an opinion and (B) whether the Total Merger Consideration was determined in accordance with this Agreement and, if not, what adjustments would be necessary in order for it to conclude that it was so determined. The Post-Closing Adjustment shall be completed as soon as practicable thereafter as provided in Sections 2.4(a) through 2.4(b) on the basis of such Specified Dynavax Issuance (independent accounting firm's report. Said report shall be final and binding on the “Holdings Election Notice”)parties. The failure fees and expenses of Holdings to notify Dynavax pursuant to this Section 2B(b) the independent accounting firm shall be deemed borne equally by ▇▇▇▇▇▇▇▇ and the Shareholders. The portion of said fees and expenses payable by the Shareholders shall be paid initially by ▇▇▇▇▇▇▇▇, subject to constitute the waiver by Holdings right of its rights under Section 2B(a) ▇▇▇▇▇▇▇▇ to reimbursement for such expenses thereafter: first from the Expenses Funds; second, in the event the Expenses Funds are exhausted, from the Initial Payment Funds; and third, in the event the Initial Payment Funds are exhausted, from the Shareholders in accordance with respect their respective Shareholder's Shares. ▇▇▇▇▇▇▇▇ and the Shareholders Representatives shall give the Escrow Agent such instructions as are necessary to such Specified Dynavax Issuancecarry out the purpose and intent of this paragraph (c).

Post-Closing Adjustment. The “Post-Closing Adjustment” shall be equal to (aa)(i) the Final Working Capital Adjustment Amount minus (ii) the Estimated Working Capital Adjustment Amount minus (b) (i) the amount of Indebtedness of the Company set forth in the Final Closing Statement minus (ii) the amount of Indebtedness of the Company set forth in the Estimated Closing Statement plus (c)(i) the Final CapEx Adjustment Amount minus (ii) the Estimated CapEx Adjustment Amount plus (d)(i) the Recoverable Costs Amount set forth in the Final Closing Statement minus (ii) the Estimated Recoverable Costs Amount. If at any time the Post-Closing Adjustment is a positive amount, then Purchaser shall, and from time Parent shall cause Purchaser to, pay in cash to time from and after the Purchase Option Closing Date through the date occurring six (6) months after the Purchase Option Closing Date Seller (or if such date is not a Business Day, one or more Affiliates designated by Seller) the first Business Day thereafter) (such date, amount of the “Final Post-Closing Adjustment. If the Post-Closing Adjustment Date”), there is a Specified Dynavax Issuancenegative amount, as soon as practicable, but then Seller (or an Affiliate designated by Seller) shall pay in no event later than five (5) cash to Purchaser the absolute value of the amount of the Post-Closing Adjustment. Any such payment pursuant to this Section 2.7 shall be made within ten Business Days after the delivery determination of the Final Closing Statement by wire transfer of immediately available funds. The Parties acknowledge and agree that the Closing Payment Adjustments pursuant to Dynavax Section 2.2 and the Post-Closing Adjustment pursuant to this Section 2.7 (and other applicable provisions of a Holdings Election Notice (as defined belowthis Agreement) (such date, the “Adjusted Securities Payment Date”), will be read to ensure that (i) Dynavax shall issue there is no benefit to Holdings such Alternate Securities in the form specified in the Specified Issuance Notice, Seller as a result of Hurricane ▇▇▇▇▇▇▇ and (ii) Holdings shall deliver to Dynavax such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, or other securities there is no duplication of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii), as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled set forth above in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Date. (b) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax pursuant to this Section 2B(b) shall be deemed to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax IssuanceHurricane ▇▇▇▇▇▇▇.

Post-Closing Adjustment. (ai) If at any time and from time to time from and Within ninety (90) days after the Purchase Option Closing Date, Buyer, with reasonable input and review by Holdings, shall prepare and deliver to Holdings an unaudited draft balance sheet of the Company as of the time of Closing (the “Closing Balance Sheet”), and a calculation of the Net Asset Value (the “Actual Net Asset Value”) prepared in accordance with the Company Accounting Policies and Estimated Calculations as set forth in Schedule 3, including the adjustments set forth thereon, (the “Actual Net Asset Value Statement”). (ii) The post-closing adjustment shall be an amount equal to the Closing Net Asset Value minus the Estimated Net Asset Value, with a dollar for dollar adjustment (whether positive or negative) equal to the difference between the Closing Net Asset Value and the Estimated Net Asset Value (the “Post-Closing Adjustment”). If the Post-Closing Adjustment is a positive number, Buyer shall pay to Holdings an amount equal to the Post-Closing Adjustment, plus the Closing Adjustment Holdback. If the Post-Closing Adjustment is a negative number, the Buyer shall retain the amount of the Post-Closing Adjustment from the Closing Adjustment Holdback, and, to the extent that the Closing Adjustment Holdback is insufficient to cover the entire Post-Closing Adjustment, from the Holdback to the extent of such insufficiency. (iii) From the Closing Date through the date occurring six (6) months after of the determination of the final Purchase Option Closing Date (or if such date is not a Business DayPrice Adjustment provided for in this Section 1.8, Buyer shall give Holdings and its advisors reasonable access during normal business hours to the books and records, the first Business Day thereafter) (such date, the “Final Adjustment Date”), there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five (5) Business Days after the delivery to Dynavax of a Holdings Election Notice (as defined below) (such date, the “Adjusted Securities Payment Date”), (i) Dynavax shall issue to Holdings such Alternate Securities in the form specified in the Specified Issuance Notice, accounting and (ii) Holdings shall deliver to Dynavax such Dynavax Closing Shares, Dynavax Closing Warrants, Alternate Closing Securities, or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note appropriate personnel and the amounts payable pursuant accountants for the Company and Buyer in order to Section 2(b)(b)(ii)review the Post-Closing Adjustment, as applicableClosing Balance Sheet and Closing Net Asset Value Statement; provided, that such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings access shall be settled on in a net basis. For manner that does not interfere with the avoidance normal business operations of doubt, Buyer or the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment DateCompany. (iv) For purposes of this subsection (b) Not later than five (5) Business Days prior ), the Parties agree to allocate expenses for utilities, water, internet, phone and sewer charges incurred in the operation of the business of the Company based on the number of days occurring period to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of Closing Date and beginning on and following the form and terms of Closing Date during the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax pursuant to this Section 2B(b) shall be deemed to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax Issuancebilling period.

Post-Closing Adjustment. (a) If at any time and In the event that (i) during the period commencing from time to time from and after the Purchase Option Closing Date through and ending on the date occurring six (6) months after third anniversary of the Purchase Option Closing Date (or if such date is not a Business DayDate, the first Business Day thereafter) (such dateParent or the Surviving Corporation incurs any Damages with respect to, the “Final Adjustment Date”)in connection with, there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five (5) Business Days after the delivery to Dynavax of a Holdings Election Notice or arising from any Parent Liabilities (as defined below) (such date, the “Adjusted Securities Payment Date”), or (ii) a Company Stockholder shall be entitled to be indemnified for Damages under Article VI hereof, then, in the case of clause (i) Dynavax above, promptly following the filing by the Parent with the Securities and Exchange Commission (the “SEC”) of an annual or quarterly report covering the completed fiscal quarter in which such Damages were incurred, or, in the case of clause (ii) above, promptly after such Company Stockholder becomes entitled to receive payment for such indemnification pursuant to Article VI, the Parent shall issue to Holdings such Alternate Securities to, in the form specified case of clause (i) above, all of the Company Stockholders and/or their designees, or, in the Specified Issuance Noticecase of clause (ii) above, such Company Stockholder so entitled to indemnification and/or his designees, such number of shares of the same class of the Parent’s capital stock held by such Company Stockholder prior to the Closing Date (in addition to the Merger Shares to which any such person was or is entitled) as would result from dividing (x) the whole dollar amount representing such Damages by (y) $1.00 (subject to equitable adjustment in the event of any stock split, stock dividend, reverse stock split or similar event affecting the Parent Common Stock or Parent Series A Preferred Stock after the Effective Time), rounded to the nearest whole number (with 0.5 shares rounded upwards to the nearest whole number). Notwithstanding the foregoing, the limit on the aggregate number of shares of Parent Common Stock and Parent Series A Preferred Stock issuable under this Section shall be 500,000 shares. Any shares of Parent Common Stock or Parent Series A Preferred Stock that are issuable under clause (i) above shall be issued to the Company Stockholders pro rata in accordance with their respective holdings of Company Common Stock and Company Series A Preferred Stock immediately prior to the Closing. (b) As used in this Section, “Parent Liabilities” shall mean all liabilities, obligations or indebtedness of any nature whatsoever (i) of the Split-Off Subsidiary, whenever accruing, and (ii) Holdings shall deliver of the Parent or the Acquisition Subsidiary, accruing prior to Dynavax such Dynavax Closing Sharesthe Effective Time and not set forth in the Parent Disclosure Schedule, Dynavax Closing Warrantsincluding, Alternate Closing Securitiesbut not limited to (A) any breach by the Parent or the Acquisition Subsidiary of any of their respective representations or warranties set forth in Article III herein, (B) any litigation threatened, pending or for which a basis exists; (C) any and all outstanding debts, (D) any and all employee-related disputes, arbitrations or administrative proceedings threatened, pending or otherwise outstanding, (E) any and all liens, foreclosures, settlements, or other securities threatened, pending or otherwise outstanding financial, legal or similar obligations of Dynavax issued pursuant the Parent or the Acquisition Subsidiary, (F) any and all Taxes for which Parent or the Acquisition Subsidiary or any of their direct or indirect assets may be liable or subject, for any taxable period (or portion thereof) ending on or before the Closing Date, including, without limitation, any and all Taxes resulting from or attributable to Parent’s ownership or operation of the Split-Off Subsidiary’s assets, (G) any and all Taxes for which Parent or its direct or indirect assets may be liable or subject (including, without limitation, the interests and assets of the Surviving Corporation and any Parent Subsidiary) as a consequence of Parent’s acquisition, formation, capitalization, ownership, and Split-Off of the Split-Off Subsidiary, whether related to a taxable period (or portion thereof) ending on or after the Closing Date, and (H) all fees and expenses incurred in connection with effecting the adjustments contemplated by this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)Section, as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Date. (b) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating Parent Liabilities are reflected in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to $20,446,000. If Holdings elects to exercise Parent’s consolidated financial statements reviewed or audited by its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax pursuant to this Section 2B(b) shall be deemed to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax Issuanceindependent auditors.

Post-Closing Adjustment. (a) If at any time and In the event that (i) during the period commencing from time to time from and after the Purchase Option Closing Date through and ending on the date occurring six (6) months after second anniversary of the Purchase Option Closing Date (Date, Acquiror or if such date is not a Business DayAcquiree incurs any Damages with respect to, the first Business Day thereafter) (such datein connection with, the “Final Adjustment Date”), there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five (5) Business Days after the delivery to Dynavax of a Holdings Election Notice or arising from any Acquiror Liabilities (as defined below) (such date, the “Adjusted Securities Payment Date”), or (ii) an Acquiree Stockholder shall be entitled to be indemnified for Damages under Article VI hereof, then, in the case of clause (i) Dynavax above, promptly following the filing by Acquiror with the Securities and Exchange Commission (the “SEC”) of an annual or quarterly report covering the completed fiscal quarter in which such Damages were incurred, or, in the case of clause (ii) above, promptly after such Acquiree Stockholder becomes entitled to receive payment for such indemnification pursuant to Article VI, Acquiror shall issue to Holdings such Alternate Securities to, in the form specified case of clause (i) above, all of the Acquiree Stockholders and/or their designees, or, in the Specified Issuance Noticecase of clause (ii) above, such Acquiree Stockholder so entitled to indemnification and/or his designees, such number of shares of Acquiror’s Common Stock (in addition to the Exchange Shares to which any such person was or is entitled) as would result from dividing (x) the whole dollar amount representing such Damages by (y) $0.50 (subject to equitable adjustment in the event of any stock split, stock dividend, reverse stock split or similar event affecting the Acquiror Common Stock after the Effective Time), rounded to the nearest whole number (with 0.5 shares rounded upwards to the nearest whole number). Notwithstanding the foregoing, the limit on the aggregate number of shares of Acquiror Common Stock issuable under this Section shall be 1,000,000 shares. Any shares of Acquiror Common Stock that are issuable under clause (i) above shall be issued to Acquiree Stockholders pro rata in accordance with their respective holdings of Acquiree Common Stock immediately prior to the Closing. (b) As used in this Section, “Acquiror Liabilities” shall mean all liabilities, obligations or indebtedness of any nature whatsoever (i) of the Split-Off Subsidiary, whenever accruing, and (ii) Holdings shall deliver of the Acquiror accruing prior to Dynavax such Dynavax Closing Sharesthe Effective Time and not set forth in the Acquiror Disclosure Schedule, Dynavax Closing Warrantsincluding, Alternate Closing Securitiesbut not limited to (A) any breach by the Acquiror of any of its representations or warranties set forth in Article III herein, (B) any litigation threatened, pending or for which a basis exists; (C) any and all outstanding debts, (D) any and all employee-related disputes, arbitrations or administrative proceedings threatened, pending or otherwise outstanding, (E) any and all liens, foreclosures, settlements, or other securities threatened, pending or otherwise outstanding financial, legal or similar obligations of Dynavax issued pursuant Acquiror, (F) any and all Taxes for which Acquiror or any of its direct or indirect assets may be liable or subject, for any taxable period (or portion thereof) ending on or before the Closing Date, including, without limitation, any and all Taxes resulting from or attributable to Acquiror’s ownership or operation of the Split-Off Subsidiary’s assets, (G) any and all Taxes for which Acquiror or its direct or indirect assets may be liable or subject (including, without limitation, the interests and assets of Acquiree and any Acquiror Subsidiary) as a consequence of Acquiror’s acquisition, formation, capitalization, ownership, and Split-Off of the Split-Off Subsidiary, whether related to a taxable period (or portion thereof) ending on or after the Closing Date, and (H) all fees and expenses incurred in connection with effecting the adjustments contemplated by this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)Section, as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, Acquiror Liabilities are reflected in Acquiror’s consolidated financial statements reviewed or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise audited by its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Dateindependent auditors. (b) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating in the Specified Dynavax Issuance upon payment to Dynavax of an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”). The failure of Holdings to notify Dynavax pursuant to this Section 2B(b) shall be deemed to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Dynavax Issuance.

Post-Closing Adjustment. (a) If at any time Immediately following the completion and from time filing by the Company of its regular Annual Statement with the Tennessee Insurance Division as set forth below, there shall be a "Post- Closing Adjustment" whereby the amounts of the Reserves and Policy Assets that were estimated and used to time from effect the Closing will be replaced by the actual amounts of the Reserves and after Policy Assets as of December 31, 1997, such that the Purchase Option Closing Date through Net Transfer Amount shall be recalculated, using the date occurring six (6) months after format of Schedule 4.3 attached hereto. The December 31, 1997, Reserves and Policy Assets shall be determined as set forth in Section 10.5. Using the Purchase Option Closing Date (or if such date is not a Business Dayformat of Schedule 4.3, the first Business Day thereafter) (such dateparties shall calculate the amount that should have been transferred at Closing if the amount of the Reserves and Policy Assets as of December 31, 1997, had been known at Closing. If the Net Transfer Amount is more than the Closing Net Transfer Amount, the “Final Company shall transfer additional assets to Reinsurer equal in amount to such differential ("Adjusting Transfer Amount"), together with interest on the Adjusting Transfer Amount (at the rate of the 6.2% per annum) from the Effective Date to the "Post-Closing Adjustment Date”" (as hereinafter defined). If the Net Transfer Amount is less than the Closing Net Transfer Amount, Reinsurer shall transfer assets to the Company equal in amount to such differential ("Adjusting Transfer Amount"), there is a Specified Dynavax Issuance, as soon as practicable, but in no event later than five together with interest on the Adjusting Transfer Amount (5at the rate of the 6.2% per annum) Business Days after from the delivery Effective Date to Dynavax of a Holdings Election Notice the "Post-Closing Adjustment Date" (as defined below) (hereinafter defined). The assets comprising such date, the “Adjusted Securities Payment Date”), Adjusting Transfer Amount shall consist of (i) Dynavax shall issue to Holdings such Alternate Securities in the form specified in the Specified Issuance Noticebonds having an NAIC designation of 1, and (ii) Holdings shall deliver accrued investment income attributable to Dynavax such Dynavax Closing Sharessaid bonds, Dynavax Closing Warrants, Alternate Closing Securities, or other securities of Dynavax issued pursuant to this Agreement, or other consideration transferred to Holdings, other than the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii), as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of Dynavax issued, or other consideration transferred (including the Dynavax Promissory Note and the amounts payable pursuant to Section 2(b)(b)(ii)), to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to Dynavax of the Symphony Collaboration Equity Securities. The foregoing described transactions between Dynavax and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Dynavax Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Date. (b) Not later than five (5) Business Days prior to the consummation of a Specified Dynavax Issuance, Dynavax shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of the form and terms of the Additional Dynavax Securities to be issued pursuant to the Specified Dynavax Issuance (such Additional Dynavax Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Dynavax Issuance; (iii) Policy Assets attributable to the estimated date of issuance Policies (that is, an adjustment, up or down, of such Alternate Securities; and (ivPolicy Assets to bring the Policy Assets component of the Closing Transfer Amount in line with the actual Policy Assets attributable to the Policies at December 31, 1997,) and/or cash. The purpose of this Section 4.3 is that the amount and form of Alternate Securities that would be issued to an investor participating Post-Closing Adjustment shall put the parties in the Specified Dynavax Issuance upon payment respective positions they would have been in if the Closing had used the Reserves and Policy Assets determined as of December 31, 1997, instead of the amounts that were used to Dynavax of accommodate an amount equal to $20,446,000. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Dynavax Issuance, Holdings, in accordance with Section 13, shall deliver to Dynavax a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Dynavax Issuance (the “Holdings Election Notice”)earlier Closing. The failure Post-Closing Adjustment shall take place on the first business day falling next after the expiration of Holdings ten (10) days following the date on which the Company files its 1997 Annual Statement with the Tennessee Insurance Division, referred to notify Dynavax pursuant to this Section 2B(b) herein as the "Post-Closing Adjustment Closing Date." The Adjusting Transfer Amount shall be deemed to constitute bear interest at the waiver by Holdings rate of its rights under Section 2B(a) with respect to such Specified Dynavax Issuance10% per annum, compounded annually, beginning on the Post-Closing Adjustment Closing Date until paid.