Common use of Post-Closing Payments Clause in Contracts

Post-Closing Payments. (a) The date on which both of the Final Working Capital and the Final Debt Amount have been finally determined in accordance with Section 3.04 is hereinafter referred to as the “Determination Date”, and the amount of such Final Working Capital and the Final Debt Amount shall be used to adjust the Common Equity Consideration (the amount of such adjustment as determined pursuant to the following two sentences, “Final Adjustment Amount”). In the event that the sum of (i) the Final Working Capital less the Estimated Working Capital and (ii) the Estimated Debt Amount less the Final Debt Amount is a positive number, then Parent shall pay to the Paying Agent, for prompt payment to the Equityholders, in proportion to their respective aggregate Equityholder’s Percentage in the Escrow Account, an amount equal to such positive number (less any applicable withholding Taxes in accordance with Section 3.06, which applicable withholding Taxes shall be paid to the Surviving Corporation immediately after being so withheld for further payment to the applicable Governmental Entity), together with interest thereon at a rate equal to the average LIBOR for the period beginning on the Closing Date and ending on the date of payment. In the event that the sum of (x) the Final Working Capital less the Estimated Working Capital and (y) the Estimated Debt Amount less the Final Debt Amount is a negative number, then the Stockholders’ Representative and Parent shall direct the escrow agent maintaining the Escrow Account to pay Parent an amount equal to the absolute value of such negative number, together with interest earned thereon. Any required payment shall be made by Parent or the escrow agent (at the direction of the Stockholders’ Representative), as the case may be, on the third Business Day following the Determination Date, in immediately available funds by wire transfer to, in the case of the Equityholders, the Paying Agent and, in the case of Parent, such bank account or accounts as Parent may specify. At the time of the payment of the Final Adjustment Amount pursuant to this Section 3.05, the balance of the Escrow Account shall be paid to the Paying Agent for distribution by the Paying Agent to the Equityholders in accordance with their respective Equityholder’s Percentages. If the funds held pursuant to the Escrow Agreement are not sufficient to pay the Final Adjustment Amount, then Parent shall have the right to setoff and apply the Construction Milestone Payment or a Coal Milestone Payment against any such shortfall (plus interest accruing on such amount from the Closing Date to the payment date at an annual rate of 5%); provided that no party shall have any other right of setoff for any reason whatsoever against the Construction Milestone Payment or any Coal Milestone Payment or any interest accrued thereon except with respect to Parent’s rights of setoff with respect to to: (1) the Final Adjustment Amount as set forth in Section 3.05(a), (2) the FIRPTA Amount, the 280G Amounts and the 409A Amounts as set forth in Section 3.06, and (3) the LC Amount and the Non-Releasing Equityholder Indemnity Amount as set forth in Section 6.11 .

Post-Closing Payments. (ai) The date on which both of the Final Working Capital and the Final Debt Amount have been finally If Additional Merger Consideration is determined to be due in accordance with this Section 3.04 2.8, then, within five (5) Business Days after the Conclusive Date, (x) Parent shall promptly deliver by wire transfer to the Paying Agent an amount in cash equal to the Additional Merger Consideration, and the Paying Agent shall promptly pay to each Stockholder its applicable Per Share Portion of such Additional Merger Consideration, and (y) Parent and the Stockholder Representative shall provide a joint written instruction to the Escrow Agent to deliver promptly the balance in the Adjustment Escrow Fund by wire transfer to the Stockholder Representative (or at the direction of the Stockholder Representative, the Paying Agent), and the Stockholder Representative (or the Paying Agent) shall promptly pay to each Stockholder its applicable Per Share Portion of such balance in the Adjustment Escrow Fund. (ii) If there is hereinafter an Excess Amount determined to be due in accordance with this Section 2.8 that is less than or equal to the lesser of (A) the Adjustment Escrow Amount and (B) the balance then in the Adjustment Escrow Fund then, within five (5) Business Days after the Conclusive Date, Parent and the Stockholder Representative shall provide a joint written instruction to the Escrow Agent to deliver promptly from the balance in the Adjustment Escrow Fund by wire transfer (x) to Parent, the Excess Amount, and (y) to the Stockholder Representative (or at the direction of the Stockholder Representative, the Paying Agent) the remaining balance in the Adjustment Escrow Fund, if any, and the Stockholder Representative (or the Paying Agent) shall promptly pay to each Stockholder its applicable Per Share Portion of any such remaining balance. (iii) If there is an Excess Amount determined to be due in accordance with this Section 2.8(g) that is greater than the lesser of (A) the Adjustment Escrow Amount and (B) the balance then in the Adjustment Escrow Fund then, within five (5) Business Days after the Conclusive Date, Parent and the Stockholder Representative shall provide a joint written instruction to the Escrow Agent to (x) deliver promptly from the Adjustment Escrow Account by wire transfer to Parent the lesser of the Adjustment Escrow Amount and the balance then in the Adjustment Escrow Fund and (y) deliver promptly from the Indemnity Escrow Fund by wire transfer to Parent the amount that is the difference between the Excess Amount and the full amount wired to Parent pursuant to the foregoing sub-clause (x). (iv) The Per Share Portion of the amounts, if any, payable to the Stockholders pursuant to this Section 2.8(g) and any amounts released to the Stockholders from the Escrow Fund and the Holdback Escrow Fund shall herein be referred to as the “Determination Date”, and the amount of such Final Working Capital and the Final Debt Amount shall be used to adjust the Common Equity Consideration (the amount of such adjustment as determined pursuant to the following two sentences, “Final Adjustment AmountPost-Closing Payment”). In the event that the sum of (i) the Final Working Capital less the Estimated Working Capital and (ii) the Estimated Debt Amount less the Final Debt Amount is a positive number, then Parent shall pay to the Paying Agent, for prompt payment to the Equityholders, in proportion to their respective aggregate Equityholder’s Percentage in the Escrow Account, an amount equal to such positive number (less any applicable withholding Taxes in accordance with Section 3.06, which applicable withholding Taxes shall be paid to the Surviving Corporation immediately after being so withheld for further payment to the applicable Governmental Entity), together with interest thereon at a rate equal to the average LIBOR for the period beginning on the Closing Date and ending on the date of payment. In the event that the sum of (x) the Final Working Capital less the Estimated Working Capital and (y) the Estimated Debt Amount less the Final Debt Amount is a negative number, then the Stockholders’ Representative and Parent shall direct the escrow agent maintaining the Escrow Account to pay Parent an amount equal to the absolute value of such negative number, together with interest earned thereon. Any required payment shall be made by Parent or the escrow agent (at the direction of the Stockholders’ Representative), as the case may be, on the third Business Day following the Determination Date, in immediately available funds by wire transfer to, in the case of the Equityholders, the Paying Agent and, in the case of Parent, such bank account or accounts as Parent may specify. At the time of the payment of the Final Adjustment Amount pursuant to this Section 3.05, the balance of the Escrow Account shall be paid to the Paying Agent for distribution by the Paying Agent to the Equityholders in accordance with their respective Equityholder’s Percentages. If the funds held pursuant to the Escrow Agreement are not sufficient to pay the Final Adjustment Amount, then Parent shall have the right to setoff and apply the Construction Milestone Payment or a Coal Milestone Payment against any such shortfall (plus interest accruing on such amount from the Closing Date to the payment date at an annual rate of 5%); provided that no party shall have any other right of setoff for any reason whatsoever against the Construction Milestone Payment or any Coal Milestone Payment or any interest accrued thereon except with respect to Parent’s rights of setoff with respect to to: (1) the Final Adjustment Amount as set forth in Section 3.05(a), (2) the FIRPTA Amount, the 280G Amounts and the 409A Amounts as set forth in Section 3.06, and (3) the LC Amount and the Non-Releasing Equityholder Indemnity Amount as set forth in Section 6.11 .

Post-Closing Payments. (a) The date on which both of the Final Working Capital and the Final Debt Amount have been finally determined in accordance with Section 3.04 is hereinafter referred to as the “Determination Date”, and the amount of such Final Working Capital and the Final Debt Adjustment Amount shall be used to adjust determined as set forth in subsections (b) and (c) of this Section 2.5. If the Common Equity Consideration (the amount of such adjustment as determined pursuant to the following two sentences, “Final Adjustment Amount”). In the event that the sum of (i) the Final Working Capital less the Estimated Working Capital and (ii) the Estimated Debt Amount less the Final Debt Amount is a positive number, then Parent Buyer shall pay such Final Adjustment Amount multiplied by the ▇▇▇▇ Seller Percentage in cash to ▇▇▇▇ Seller and such Final Adjustment Amount multiplied by the Paying Agent, for prompt payment AAC Seller Percentage in cash to the EquityholdersAAC Seller, in proportion to their respective aggregate Equityholder’s Percentage in each case within five (5) Business Days after the Escrow Account, an amount equal to such positive number (less any applicable withholding Taxes in accordance with Section 3.06, which applicable withholding Taxes shall be paid to the Surviving Corporation immediately after being so withheld for further payment to the applicable Governmental Entity), together with interest thereon at a rate equal to the average LIBOR for the period beginning on the Closing Date and ending on the date of paymentfinal determination thereof. In the event that the sum of (x) If the Final Working Capital less the Estimated Working Capital and (y) the Estimated Debt Amount less the Final Debt Adjustment Amount is a negative number, then the Stockholders’ Representative and Parent ▇▇▇▇ Seller shall direct the escrow agent maintaining the Escrow Account to pay Parent an amount equal to the absolute value of such negative numberFinal Adjustment Amount multiplied by the ▇▇▇▇ Seller Percentage and AAC Seller shall pay the absolute value of such Final Adjustment Amount multiplied by the AAC Seller Percentage, together with interest earned thereonin each case to Buyer in cash within five (5) Business Days after the final determination thereof. If, in the year of the Closing but following the determination of the Final Section 338 Adjustment, there is a change in the highest marginal U.S. federal income Tax rate applicable to U.S. corporations, which rate is retroactively applied and effective as of the Closing Date, the Final 338 Adjustment shall be recalculated solely to reflect the changed U.S. federal income Tax rate, and ▇▇▇▇ Seller and AAC Seller shall pay to Buyer (in the proportions described in the second sentence of this Section 2.5(a)) the excess of the recalculated Final Section 338 Adjustment over the previously calculated Final Section 338 Adjustment. Any payments required payment shall to be made by Parent or the escrow agent either party pursuant to this Section 2.5(a) shall (at the direction i) be made by wire transfer of the Stockholders’ Representative), as the case may be, on the third Business Day following the Determination Date, in immediately available funds to an account designated in writing by wire transfer tothe receiving party and (ii) include interest on the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made. (b) No later than seventy-five (75) days after the Closing Date, Buyer shall deliver to Sellers (i) a statement (the “Final Adjustment Statement”) setting forth the balance sheet of the Company as of the Closing prepared in accordance with the Accounting Principles, consistently applied, after giving effect to the Pre-Sale Transactions and the ALNY Sale or ALNY Transfer, as applicable (the “Subject Balance Sheet”), and setting forth in reasonable detail Buyer’s calculation of the Closing Statutory Value, the Section 338 Adjustment and the Final Adjustment Amount based thereon, (ii) a written certificate of an officer of Buyer certifying that the Subject Balance Sheet was prepared in accordance with the Accounting Principles, consistently applied, and setting forth in reasonable detail Buyer’s calculation of the Final Closing Statutory Value, the Final Section 338 Adjustment and the Final Adjustment Amount based thereon and (iii) reasonable supporting documentation with respect to the calculation of the amounts set forth on the Final Adjustment Statement. (c) Sellers shall have forty-five (45) days from the date on which the Final Adjustment Statement is delivered to it to review the Final Adjustment Statement, the Subject Balance Sheet and the calculations of Closing Statutory Value, the Section 338 Adjustment and the Final Adjustment Amount based thereon (the “Review Period”). In furtherance of such review, Buyer and the Company shall provide Sellers and their respective Representatives with reasonable access to the employees and Representatives of Buyer and its Affiliates (including the Transferred Companies) responsible for and knowledgeable about the information set forth in the case Final Adjustment Statement and the Subject Balance Sheet (including the Chief Financial Officer of Buyer) and to all documentation, records and other information of Buyer and its Affiliates (including the Equityholders, Transferred Companies) related to the Paying Agent and, in the case of Parent, such bank account preparation or accounts as Parent may specify. At the time of the payment contents of the Final Adjustment Statement and the Subject Balance Sheet as Sellers or any of their respective Representatives may reasonably request; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer or its Affiliates (including the Transferred Companies). (i) If Sellers disagree with the Final Adjustment Statement (including any amount or computation set forth therein) in good faith in any respect and on any basis other than as would conflict with the Accounting Principles, Sellers may, on or prior to the last day of the Review Period, deliver a notice to Buyer setting forth, in reasonable detail, each disputed item, or amount and the basis for Sellers’ disagreement therewith (the “Dispute Notice”). The Dispute Notice shall set forth, with respect to each disputed item, Sellers’ position as to the correct amount or computation that should have been included in the Final Adjustment Statement and as to the Final Adjustment Amount. (ii) If no Dispute Notice is delivered to Buyer with respect to any item in the Final Adjustment Statement on or prior to the last day of the Review Period, the amount or computation with respect to such item as set forth in the Final Adjustment Statement shall be deemed accepted by Sellers, whereupon the amount or computation of such item or items shall be final and binding on the parties. (iii) For a period of ten (10) Business Days beginning on the date that Buyer receives a Dispute Notice, if any, Buyer and Sellers 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 ten (10) Business Day period, Buyer or either Seller may engage PriceWaterhouse Coopers LLP, or if PriceWaterhouse Coopers LLP is unwilling or unable to serve, another accounting firm of national reputation, as mutually agreed by the parties hereto (the “Independent Accounting Firm”), to make a determination with respect to all matters in dispute. (iv) Buyer and Sellers will direct the Independent Accounting Firm to render a determination within thirty (30) Business Days after its retention, and Buyer, Sellers and their respective employees and agents will cooperate with the Independent Accounting Firm during its engagement. Buyer, on the one hand, and Sellers, on the other hand, shall promptly (and in any event within ten (10) Business Days) after the Independent Accounting Firm’s engagement each submit to the Independent Accounting Firm their respective computations of the disputed items 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 (with a copy thereof to the other party) within five (5) Business Days after the first date on which both parties have submitted their respective initial submissions to the Independent Accounting Firm. The Independent Accounting Firm shall thereafter be permitted to request additional or clarifying information from the parties, and each of the parties shall reasonably cooperate and shall cause their Representatives to reasonably cooperate with such requests of the Independent Accounting Firm. The Independent Accounting Firm 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 Buyer and Sellers (the “Adjustment Report”) in which the Independent Accounting Firm 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 Final Adjustment Statement solely as to the disputed items and shall determine the appropriate Final Adjustment Amount on that basis. (v) Buyer and Sellers shall instruct the Independent Accounting Firm to set forth in the Adjustment Report, in reasonable detail, the Independent Accounting Firm’s 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 Final Adjustment Statement, together with supporting calculations. In resolving any disputed item, the Independent Accounting Firm (1) shall be bound to the principles of this Section 2.5 and the terms of this Agreement, including requiring the Final Adjustment Statement being prepared in accordance with the Accounting Principles, (2) shall limit its review to matters specifically set forth in the Dispute Notice and (3) shall not assign a value to any item higher than the highest value for such item claimed by either party or less than the lowest value for such item claimed by either party. (vi) All fees and expenses relating to the work of the Independent Accounting Firm shall be shared equally by Buyer, on the one hand, and Sellers, on the other hand. The Adjustment Report, absent fraud or manifest error, shall be final and binding upon Buyer and Sellers, and shall be deemed a final arbitration award that is binding on each of Buyer and Sellers, and no party shall seek further recourse to courts, other tribunals or otherwise, other than to enforce the Adjustment Report. (vii) The final form of the balance sheet of the Transferred Companies as of the Closing Date as finally determined pursuant to this Section 3.052.5 is referred to herein as the “Final Balance Sheet”, the balance amount of the Escrow Account shall be paid Section 338 Adjustment as finally determined pursuant to this Section 2.5 is referred to as the “Final Section 338 Adjustment” and the amount of the Closing Statutory Value calculated from the Final Balance Sheet is referred to as the “Final Closing Statutory Value”. Notwithstanding anything to the Paying Agent contrary contained in this Agreement, the provisions of this Section 2.5 represent the sole and exclusive method for distribution determining the Final Balance Sheet, the Final Section 338 Adjustment and the Final Closing Statutory Value. (viii) For the avoidance of doubt, the Final Balance Sheet and the amounts of the Final Closing Statutory Value and Final Adjustment Amount calculated as provided hereunder and related thereto shall reflect the payment by the Paying Agent to Company of the Equityholders Initial Premium under the D2C Reinsurance Agreement and the Recapture Amounts under each of the Recapture Agreements, in each case in the amount of such payments as finally determined in accordance with their respective Equityholder’s Percentages. If the funds held pursuant to the Escrow Agreement are not sufficient to pay the Final Adjustment Amount, then Parent shall have the right to setoff and apply the Construction Milestone Payment or a Coal Milestone Payment against any post-closing adjustment provisions of such shortfall (plus interest accruing on such amount from the Closing Date to the payment date at an annual rate of 5%); provided that no party shall have any other right of setoff for any reason whatsoever against the Construction Milestone Payment or any Coal Milestone Payment or any interest accrued thereon except with respect to Parent’s rights of setoff with respect to to: (1) the Final Adjustment Amount as set forth in Section 3.05(a), (2) the FIRPTA Amount, the 280G Amounts and the 409A Amounts as set forth in Section 3.06, and (3) the LC Amount and the Non-Releasing Equityholder Indemnity Amount as set forth in Section 6.11 agreements.

Post-Closing Payments. (ai) The date Total Consideration, calculated based on (A) the amount of Closing Cash, not to exceed $2,000,000, (B) the Pre-Closing Asset Purchase Amount, (C) the Final Gross-Up Amount, (D) the amount of Closing Debt, (E) the amount of Transaction Expenses, and (F) the amount (if any) by which both Closing Net Working Capital exceeds or is less than the Estimated Closing Net Working Capital, each as deemed final and binding on the parties pursuant to this Section 2.04 and subject to Section 7.01(e), is referred to herein as the “Final Total Consideration”. (ii) If the amount of the Final Working Capital and the Final Debt Amount have been finally determined in accordance with Section 3.04 is hereinafter referred to as the “Determination Date”, and Total Consideration exceeds the amount of such Final Working Capital and the Final Debt Amount shall be used to adjust the Common Equity Estimated Total Consideration (such excess amount, the amount of such adjustment as determined pursuant to the following two sentences, “Final Positive Adjustment Amount”). In , then, within five (5) Business Days after the event that the sum determination of (i) the Final Working Capital less the Estimated Working Capital and (ii) the Estimated Debt Amount less the Final Debt Amount is a positive numberTotal Consideration pursuant to this Section 2.04, then Parent Purchaser shall pay or shall cause to the Paying Agentbe paid to Seller Representative, for prompt payment to the Equityholders, in proportion to their respective aggregate Equityholder’s Percentage in the Escrow Accountby wire transfer of immediately available funds, an amount in cash equal to such positive number (less any applicable withholding Taxes the Positive Adjustment Amount for distribution pro rata to the Seller Group in accordance with Section 3.06, which applicable withholding Taxes each such member’s Pro Rata Share and the Seller Representative and Purchaser shall be paid issue a joint written instruction to the Surviving Corporation immediately after being so withheld for further payment to the applicable Governmental Entity), together with interest thereon at a rate equal to the average LIBOR for the period beginning on the Closing Date and ending on the date of payment. In the event that the sum of (x) the Final Working Capital less the Estimated Working Capital and (y) the Estimated Debt Amount less the Final Debt Amount is a negative number, then the Stockholders’ Representative and Parent shall direct the escrow agent maintaining Escrow Agent instructing the Escrow Account Agent to pay Parent an amount equal to promptly (but in any event within five (5) Business Days) release, from the absolute value of such negative numberPurchase Price Adjustment Escrow Fund, together with interest earned thereon. Any required payment shall be made by Parent or the escrow agent (at the direction then balance of the Stockholders’ Representative), as the case may be, on the third Business Day following the Determination DatePurchase Price Adjustment Escrow Fund, in immediately available funds by wire transfer tofunds, in the case of the Equityholders, the Paying Agent and, in the case of Parent, such bank to an account or accounts as Parent may specify. At designated by the time Seller Representative in writing. (iii) If the amount of the payment Estimated Total Consideration exceeds the amount of the Final Total Consideration (the “Negative Adjustment Amount Amount”), then within five (5) Business Days after the determination of the Final Total Consideration pursuant to this Section 3.052.04, Seller Representative and Purchaser shall issue a joint written instruction to the Escrow Agent instructing the Escrow Agent to promptly (but in any event within three (3) Business Days) release, from the Purchase Price Adjustment Escrow Fund, the (A) Negative Adjustment Amount, in immediately available funds, to an account or accounts designated by Purchaser in writing and (B) the resulting remaining balance of the Purchase Price Adjustment Escrow Account shall be paid Fund, in immediately available funds, to an account or accounts designated by the Seller Representative in writing for distribution pro rata to the Paying Agent for distribution by the Paying Agent to the Equityholders Seller Group in accordance with their respective Equityholdereach such member’s PercentagesPro Rata Share. If To the funds held pursuant to extent that the Negative Adjustment Amount is greater than the Purchase Price Adjustment Escrow Agreement are not sufficient to pay the Final Adjustment AmountFund, then Parent Purchaser shall have the right to setoff demand payment of such excess from either the Indemnification Escrow Fund or Seller and apply the Construction Milestone Payment or a Coal Milestone Payment against any such shortfall members of the Seller Group, jointly and severally. (plus interest accruing on such amount from the Closing Date iv) Any payment made under this Section 2.04, to the payment date at maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an annual rate of 5%); provided that no party shall have any other right of setoff for any reason whatsoever against adjustment to the Construction Milestone Payment or any Coal Milestone Payment or any interest accrued thereon except with respect to Parent’s rights of setoff with respect to to: (1) the Final Adjustment Amount as set forth in Section 3.05(a), (2) the FIRPTA Amount, the 280G Amounts and the 409A Amounts as set forth in Section 3.06, and (3) the LC Amount and the Non-Releasing Equityholder Indemnity Amount as set forth in Section 6.11 Total Consideration.

Post-Closing Payments. (ai) The date Total Merger Consideration, calculated based on (i) the amount of Closing Cash, (ii) the amount of Closing Debt, (iii) the amount of Transaction Expenses, and (iv) the amount (if any) by which both Closing Net Working Capital exceeds or is less than the Estimated Closing Net Working Capital, each as deemed final and binding on the parties pursuant to this Section 2.12, is referred to herein as the “Final Total Merger Consideration”. (ii) If the amount of the Final Working Capital and the Final Debt Amount have been finally determined in accordance with Section 3.04 is hereinafter referred to as the “Determination Date”, and Total Merger Consideration exceeds the amount of such Final Working Capital and the Final Debt Amount shall be used to adjust the Common Equity Estimated Total Merger Consideration (such excess amount, the amount of such adjustment as determined pursuant to the following two sentences, “Final Positive Adjustment Amount”). In , then, within five (5) Business Days after the event that the sum determination of (i) the Final Working Capital less the Estimated Working Capital and (ii) the Estimated Debt Amount less the Final Debt Amount is a positive numberMerger Consideration pursuant to this Section 2.12, then Parent shall pay deposit or shall cause to be deposited with the Paying AgentShareholder Representative, for prompt payment to the Equityholders, in proportion to their respective aggregate Equityholder’s Percentage in the Escrow Accountby wire transfer of immediately available funds, an amount in cash equal to such positive number (less any applicable withholding Taxes the portion of the Positive Adjustment Amount, for distribution pro rata to the Shareholders in accordance with Section 3.06, which applicable withholding Taxes shall be paid to each such holder’s Pro Rata Share and the Surviving Corporation immediately after being so withheld for further payment to the applicable Governmental Entity), together with interest thereon at a rate equal to the average LIBOR for the period beginning on the Closing Date and ending on the date of payment. In the event that the sum of (x) the Final Working Capital less the Estimated Working Capital and (y) the Estimated Debt Amount less the Final Debt Amount is a negative number, then the Stockholders’ Shareholder Representative and Parent shall direct the escrow agent maintaining issue a joint written instruction to the Escrow Account Agent instructing the Escrow Agent to pay Parent an amount equal to promptly (but in any event within five (5) Business Days) release, from the absolute value of such negative numberPurchase Price Adjustment Escrow Fund, together with interest earned thereon. Any required payment shall be made by Parent or the escrow agent (at the direction then balance of the Stockholders’ Representative), as the case may be, on the third Business Day following the Determination DatePurchase Price Adjustment Escrow Fund, in immediately available funds by wire transfer tofunds, in the case of the Equityholders, the Paying Agent and, in the case of Parent, such bank to an account or accounts as Parent may specify. At designated by the time Shareholders in writing. (iii) If the amount of the payment Estimated Total Merger Consideration exceeds the amount of the Final Total Merger Consideration (the “Negative Adjustment Amount Amount”), then within five (5) Business Days after the determination of the Final Merger Consideration pursuant to this Section 3.052.12, the Shareholder Representative and Parent shall issue a joint written instruction to the Escrow Agent instructing the Escrow Agent to promptly (but in any event within five (5) Business Days) release, from the Purchase Price Adjustment Escrow Fund (A) the Negative Adjustment Amount, in immediately available funds, to an account or accounts designated by Parent in writing and (B) the resulting remaining balance of the Purchase Price Adjustment Escrow Account shall be paid Fund, in immediately available funds, to the Paying Agent for distribution an account or accounts designated by the Paying Agent to Shareholders in writing. To the Equityholders in accordance with their respective Equityholder’s Percentages. If extent that the funds held pursuant to Negative Adjustment Amount is greater than the Purchase Price Adjustment Escrow Agreement are not sufficient to pay the Final Adjustment AmountFund, then Parent shall have the right to setoff demand payment of such excess from either the Indemnification Escrow Fund or the Shareholders, jointly and apply the Construction Milestone Payment or a Coal Milestone Payment against any such shortfall severally. (plus interest accruing on such amount from the Closing Date iv) Any payment made under this Section 2.12, to the payment date at maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an annual rate of 5%); provided that no party shall have any other right of setoff for any reason whatsoever against adjustment to the Construction Milestone Payment or any Coal Milestone Payment or any interest accrued thereon except with respect to Parent’s rights of setoff with respect to to: (1) the Final Adjustment Amount as set forth in Section 3.05(a), (2) the FIRPTA Amount, the 280G Amounts and the 409A Amounts as set forth in Section 3.06, and (3) the LC Amount and the Non-Releasing Equityholder Indemnity Amount as set forth in Section 6.11 Total Merger Consideration.

Post-Closing Payments. (a) The date on which both of the Final Working Capital and the Final Debt Amount have been finally determined in accordance with Section 3.04 is hereinafter referred to as the “Determination Date”, and the amount of such Final Working Capital and the Final Debt Adjustment Amount shall be used to adjust determined as set forth in subsections (b) and (c) of this Section 2.5. If the Common Equity Consideration (the amount of such adjustment as determined pursuant to the following two sentences, “Final Adjustment Amount”). In the event that the sum of (i) the Final Working Capital less the Estimated Working Capital and (ii) the Estimated Debt Amount less the Final Debt Amount is a positive number, then Parent Buyer shall pay such Final Adjustment Amount to Seller or its designee within five Business Days after the Paying Agent, for prompt payment to the Equityholders, in proportion to their respective aggregate Equityholder’s Percentage in the Escrow Account, an amount equal to such positive number (less any applicable withholding Taxes in accordance with Section 3.06, which applicable withholding Taxes shall be paid to the Surviving Corporation immediately after being so withheld for further payment to the applicable Governmental Entity), together with interest thereon at a rate equal to the average LIBOR for the period beginning on the Closing Date and ending on the date of paymentfinal determination thereof. In the event that the sum of (x) If the Final Working Capital less the Estimated Working Capital and (y) the Estimated Debt Amount less the Final Debt Adjustment Amount is a negative number, then the Stockholders’ Representative and Parent Seller shall direct the escrow agent maintaining the Escrow Account to pay Parent an amount equal to the absolute value of such negative number, together with interest earned thereonFinal Adjustment Amount to Buyer within five Business Days after the final determination thereof. Any payments required payment shall to be made by Parent or the escrow agent (at the direction of the Stockholders’ Representative), as the case may be, on the third Business Day following the Determination Date, in immediately available funds by wire transfer to, in the case of the Equityholders, the Paying Agent and, in the case of Parent, such bank account or accounts as Parent may specify. At the time of the payment of the Final Adjustment Amount either party pursuant to this Section 3.05, 2.5(a) shall (i) be made by wire transfer of immediately available funds and (ii) include interest on the balance of the Escrow Account shall amount required to be paid to at the Paying Agent for distribution by Applicable Rate, compounded annually on the Paying Agent to the Equityholders in accordance with their respective Equityholder’s Percentages. If the funds held pursuant to the Escrow Agreement are not sufficient to pay the Final Adjustment Amountbasis of a year of 365 days, then Parent shall have the right to setoff from (and apply the Construction Milestone Payment or a Coal Milestone Payment against any such shortfall (plus interest accruing on such amount from including) the Closing Date to (but excluding) the date such payment date at an annual rate of 5%); provided that no party is made. (b) No later than 90 days after the Closing Date, Buyer shall have any other right of setoff for any reason whatsoever against the Construction Milestone Payment or any Coal Milestone Payment or any interest accrued thereon except with respect deliver to Parent’s rights of setoff with respect to toSeller: (1i) a statement (the “Final Adjustment Statement”) setting forth the balance sheet of the Company as of the Closing Date prepared in good faith from the Books and Records in accordance with the Accounting Principles, consistently applied (the “Subject Balance Sheet”) and showing Buyer’s calculations of (A) the Closing Statutory Value, (B) the Recapture Adjustment Amount and (C) the Final Adjustment Amount as based on (A) and (B); and (ii) reasonable supporting documentation with respect to the calculation of the amounts set forth in Section 3.05(a)the Final Adjustment Statement. Seller shall, during such period of no longer than 90 days after the Closing Date, provide Buyer and the Company and their Representatives with reasonable access to the employees of Seller to the extent such employees have knowledge about the Company Business and to all documentation, records and other information of the Company or Seller, as Buyer, the Company or any of their Representatives may reasonably request and that are necessary to facilitate the preparation of the Final Adjustment Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Seller and that such access and cooperation shall not, in the event of any dispute arising out of this Agreement, serve to prejudice Seller or any of its Affiliates. (c) (i) Seller shall have 45 days from the date on which the Final Adjustment Statement is delivered to it to review the Final Adjustment Statement, the Subject Balance Sheet and the calculations of (A) the Closing Statutory Value, (2B) the FIRPTA Closing Recapture Adjustment Amount, the 280G Amounts and the 409A Amounts as set forth in Section 3.06, and (3C) the LC Final Adjustment Amount based on (A) and (B) (the “Review Period”). In furtherance of such review, Buyer and the Non-Releasing Equityholder Indemnity Amount Company shall provide Seller and its Representatives with reasonable access during such 45 day period to the employees of Buyer and the Company (including to the Chief Financial Officer of Buyer) and to all documentation, records and other information of Buyer and the Company as set forth Seller or any of its Representatives may reasonably request; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer or the Company and that such access and cooperation shall not, in Section 6.11 the event of any dispute arising out of this Agreement, serve to prejudice Buyer or any of its Affiliates.

Post-Closing Payments. (ai) The date on which both of If the Final Working Capital and the Final Debt Amount have been Adjustment Amount, as finally determined in accordance with Section 3.04 is hereinafter referred to as the “Determination Date”, and the amount of such Final Working Capital and the Final Debt Amount shall be used to adjust the Common Equity Consideration (the amount of such adjustment as determined pursuant to the following two sentencesthis Section 1.8, “Final Adjustment Amount”). In the event that the sum of is negative (i) the Final Working Capital less the Estimated Working Capital and (ii) the Estimated Debt Amount less the Final Debt Amount is a positive number, then Parent shall pay to the Paying Agent, for prompt payment to the Equityholders, in proportion to their respective aggregate Equityholder’s Percentage in the Escrow Account, an amount equal to such positive number (less any applicable withholding Taxes in accordance with Section 3.06, which applicable withholding Taxes shall be paid to the Surviving Corporation immediately after being so withheld for further payment to the applicable Governmental Entity), together with interest thereon at a rate equal to the average LIBOR for the period beginning on the Closing Date and ending on the date of payment. In the event that the sum of (x) the Final Working Capital less the Estimated Working Capital and (y) the Estimated Debt Amount less the Final Debt Amount is a negative number, then the Stockholders’ Representative and Parent shall direct the escrow agent maintaining the Escrow Account to pay Parent an amount equal to the absolute value of such negative numberamount, together with interest earned thereon. Any required payment the “Post-Closing Deficit”), then the Company Holders shall be made by owe Parent or the escrow agent (at the direction full amount of the Stockholders’ RepresentativePost-Closing Deficit. Payment of any Post-Closing Deficit shall come: (x) first from the Tail Fund, to the extent there are funds remaining in the Tail Fund, and the Stockholder Representative shall promptly (no later than the Tail Fund Release Date and in any event within two (2) Business Days following the final determination of the Final Adjustment Amount) take all actions to cause an amount in cash equal to the amount of the Post-Closing Deficit from the Tail Fund to be paid to Parent, including the execution by the Stockholder Representative of joint written instructions to the Escrow Agent and (y) second, to the extent the Post-Closing Deficit exceeds the funds then held in the Tail Fund, then (in addition to the payment to Parent from the Tail Fund pursuant to subclause (x) hereof (which shall equal the total amount of funds then held in the Tail Fund)) the Stockholder Representative shall also take all actions to cause an amount in cash equal to the amount of Post-Closing Deficit not paid pursuant to subclause (x) hereof to be paid to Parent from the Escrow Fund, and shall include such necessary instructions to facilitate the same in the joint written instructions to the Escrow Agent. For the avoidance of doubt, any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Article VII. (ii) If the Final Adjustment Amount, as finally determined pursuant to this Section 1.8, is positive (the absolute value of such amount, the “Post-Closing Increase”), as then the case may beParent shall, on no later than five (5) Business Days after the third Business Day following the Determination Date, in immediately available funds by wire transfer to, in the case of the Equityholders, the Paying Agent and, in the case of Parent, such bank account or accounts as Parent may specify. At the time of the payment final determination of the Final Adjustment Amount pursuant to this Section 3.051.8, pay the Post-Closing Increase to the Exchange Agent for further distribution to the Stockholders in accordance with the Charter Allocation. Table of Contents (iii) To the extent that there exist any Liabilities and/or Losses relating to (A) severance and termination payments for employees of the Company incurred as of or after the Effective Time until the Tail Fund Release Date, not to exceed the amount(s) set forth on Schedule 1.8(e)(iii), (B) severance and termination payments for employees of Dataxu Ltd., a United Kingdom private limited company (“Dataxu UK”), incurred as of or after the Effective Time until the six month anniversary of the Effective Time, not to exceed the amount(s) set forth on Schedule 1.8(e)(iii) or (C) bonuses, commissions and other similar payments payable to any employee for services rendered in the Company’s 2019 fiscal year, whether or not earned, vested or accrued as of immediately prior to the Effective Time but that become earned, vested or accrued by the Company or any Subsidiary as of or after the Effective Time, in each case that are not deemed Indebtedness or Third Party Expenses (together, the balance “Tail Costs”), the Indemnifying Parties shall indemnify, and hold harmless the Indemnified Parties, from and against such the Tail Costs pursuant to Article VII. (A) If an Indemnified Party wishes to make an claim for Tail Costs under this Section 1.8(e), such Indemnified Party shall deliver a written notice to the Stockholder Representative (with a copy to the Escrow Agent) (i) stating that an Indemnified Party has paid, incurred, suffered or sustained, or reasonably anticipates that it may pay, incur, suffer or sustain Losses and (ii) specifying in reasonable detail the individual items of such Losses, the date each such item was paid, incurred, suffered or sustained, or the basis for such anticipated liability (a “Tail Notice”). The Indemnified Party may update a Tail Notice from time to time to reflect any new information discovered with respect to the claim set forth in such Tail Notice. (B) If the Stockholder Representative shall not object in writing within the 30-day period after receipt of a Tail Notice by delivery of a written notice of objection containing a reasonably detailed description of the Escrow Account facts and circumstances supporting an objection to the applicable indemnification claim (an “Tail Objection Notice”), such failure to so object shall be an irrevocable acknowledgment by the Stockholder Representative on behalf of the Indemnifying Parties (or the applicable Indemnifying Party) that the Indemnified Party is entitled to the full amount of the claim for Losses set forth in such Tail Notice. In such event, the Escrow Agent shall promptly release cash equal to the Losses set forth in such Tail Notice to Parent first, from the Tail Fund and second, to the extent such Losses exceed the funds then held in the Tail Fund, from the Escrow Fund. (C) In the event that the Stockholder Representative shall deliver an Tail Objection Notice within 30 days after delivery of such Tail Notice to the Stockholder Representative, the Stockholder Representative and Parent shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims. If the Stockholder Representative and Parent should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties and furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and make distributions from the Escrow Fund in accordance with the terms thereof. In such event, the Escrow Agent shall promptly release an amount of cash equal to the Losses set forth in such Tail Notice first, from the Tail Fund and second, to the extent such Losses exceed the funds then held in the Tail Fund, from the Escrow Fund. (D) If no such agreement can be reached after good faith negotiation and prior to thirty (30) days after delivery of a Tail Objection Notice, Parent may file suit with respect to the matter in a court pursuant to Section 8.14. (iv) For the avoidance of doubt, additional Tail Costs may be realized after the date such joint delivery instruction is delivered, and the Company Holders shall be held responsible for such additional expenses or costs, and further, any recovery of any such Tail Costs shall be subject to the limitations on indemnification set forth in Article VII; provided that for the avoidance of doubt, Parent and the other Indemnifying Parties may not recover for the same Tail Costs pursuant to Article VII to the extent such Tail Costs are paid to Parent pursuant to this Section 1.8(e). (v) On the Paying Agent for distribution by ninety-fifth (95th) day after the Paying Closing Date (the “Tail Fund Release Date”), if any cash amounts are remaining in the Tail Fund, Parent and the Stockholder Representative shall provide a joint Table of Contents written instruction to the Escrow Agent to deliver such remaining amounts to the Equityholders Exchange Agent or the Surviving Corporation (as applicable) for further distribution to the Company Holders in accordance with their respective Equityholder’s Percentages. If the funds held pursuant Indemnity Portions; provided that if there are any Post-Closing Deficit or Tail Costs subject to outstanding joint written instructions to the Escrow Agreement are not sufficient to pay the Final Adjustment AmountAgent, then such amounts shall be promptly delivered to Parent shall have instead; provided further that if there are any Post-Closing Deficit or Tail Costs subject to good faith dispute between Parent or the right to setoff and apply the Construction Milestone Payment or a Coal Milestone Payment against any Stockholder Representative (each an “Outstanding Disputed Amount”), such shortfall (plus interest accruing on such amount from the Closing Date Outstanding Disputed Amounts will not be delivered to the payment date Exchange Agent or the Surviving Corporation (as applicable) for distribution to the Company Holders or Parent at an annual rate that time. Upon final resolution of 5%); provided that no party the Outstanding Disputed Amounts, Parent and the Stockholder Representative shall have any other right of setoff for any reason whatsoever against provide a joint written instruction to the Construction Milestone Payment or any Coal Milestone Payment or any interest accrued thereon except with respect Escrow Agent to Parent’s rights of setoff with respect to to: release (1) the Final Adjustment portion of the Outstanding Disputed Amounts that are determined to belong to the Company Holders to the Exchange Agent or the Surviving Corporation (as applicable) for further distribution to the Company Holders in accordance with their Indemnity Portions and (2) the portion of the Outstanding Disputed Amounts that are determined to belong to Parent to Parent. Delivery of a Post-Closing Statement pursuant to Section 1.8(b) shall constitute a good faith dispute hereunder, and the amounts in dispute with respect to such Post-Closing Statement shall constitute an Outstanding Disputed Amount as until finally resolved pursuant to the procedures set forth in Section 3.05(a), (21.8(c) the FIRPTA Amount, the 280G Amounts and the 409A Amounts as set forth in Section 3.06, and (3) d). Cash amounts from the LC Tail Fund shall be distributed in the same proportion as the Tail Amount and was deposited in the Non-Releasing Equityholder Indemnity Amount as set forth in Section 6.11 Tail Fund with respect to each Company Holder.

Post-Closing Payments. (a) The date on which both of the Final Working Capital and the Final Debt Amount have been finally determined in accordance with Section 3.04 is hereinafter referred to as the “Determination Date”, and the amount of such Final Working Capital and the Final Debt Adjustment Amount shall be used to adjust determined as set forth in subsections (b) and (c) of this Section 2.5. If the Common Equity Consideration (the amount of such adjustment as determined pursuant to the following two sentences, “Final Adjustment Amount”). In the event that the sum of (i) the Final Working Capital less the Estimated Working Capital and (ii) the Estimated Debt Amount less the Final Debt Amount is a positive number, then Parent Buyer shall pay such Final Adjustment Amount to Seller or its designee within five Business Days after the Paying Agent, for prompt payment to the Equityholders, in proportion to their respective aggregate Equityholder’s Percentage in the Escrow Account, an amount equal to such positive number (less any applicable withholding Taxes in accordance with Section 3.06, which applicable withholding Taxes shall be paid to the Surviving Corporation immediately after being so withheld for further payment to the applicable Governmental Entity), together with interest thereon at a rate equal to the average LIBOR for the period beginning on the Closing Date and ending on the date of paymentfinal determination thereof. In the event that the sum of (x) If the Final Working Capital less the Estimated Working Capital and (y) the Estimated Debt Amount less the Final Debt Adjustment Amount is a negative number, then the Stockholders’ Representative and Parent Seller shall direct the escrow agent maintaining the Escrow Account to pay Parent an amount equal to the absolute value of such negative number, together with interest earned thereonFinal Adjustment Amount to Buyer within five Business Days after the final determination thereof. Any payments required payment shall to be made by Parent or the escrow agent either party pursuant to this Section 2.5(a) shall (at the direction i) be made by wire transfer of the Stockholders’ Representative), as the case may be, on the third Business Day following the Determination Date, in immediately available funds by wire transfer toand (ii) include interest on the amount required to be paid at the Applicable Rate, in compounded annually on the case basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made. (b) No later than 90 days after the Closing Date, Buyer shall deliver to Seller (i) a statement (the “Final Adjustment Statement”) setting forth (A) the balance sheet of the Equityholders, the Paying Agent and, in the case of Parent, such bank account or accounts Company as Parent may specify. At the time of the payment Closing Date prepared in accordance with the Accounting Principles, consistently applied, after giving effect to the Restructuring and the other transactions contemplated by this Agreement to be effected at or prior to the Closing (the “Subject Balance Sheet”) and showing Buyer’s calculation of the Closing Statutory Value based thereon, (ii) a written certificate of the chief financial officer of Buyer certifying that the Subject Balance Sheet was prepared in accordance with the Accounting Principles, consistently applied, and setting forth in reasonable detail Buyer’s calculation of the Final Closing Statutory Value and the Final Adjustment Amount based thereon and (iii) supporting documentation with respect to the calculation of the amounts set forth on the Final Adjustment Statement. Between the date hereof and the date on which the Final Adjustment Statement is delivered pursuant to this Section 3.052.5(b), Seller shall provide Buyer and its Representatives with reasonable access, during normal business hours, upon reasonable advance notice to Seller, to the balance employees of Seller (including the chief financial officer of Seller) who are primarily responsible for the preparation of the Escrow Account shall be paid Estimated Balance Sheet and to documentation, records and other information relating thereto to the Paying Agent for distribution by the Paying Agent extent reasonably necessary to the Equityholders in accordance with their respective Equityholderfacilitate Buyer’s Percentages. If the funds held pursuant ability to the Escrow Agreement are not sufficient to pay prepare the Final Adjustment Amount, then Parent shall have the right to setoff and apply the Construction Milestone Payment or a Coal Milestone Payment against any such shortfall (plus interest accruing on such amount from Statement after the Closing Date (including reasonable access to all work papers of the payment date at an annual rate of 5%accountants who compiled or reviewed the Estimated Balance Sheet, subject to Buyer entering into a reasonable customary undertaking required by Seller’s accountants in connection therewith in form and substance reasonably acceptable to such accountants); provided that no party . (c) (i) Seller shall have any other right 45 days from the date on which the Final Adjustment Statement is delivered to it to review the Final Adjustment Statement, the Subject Balance Sheet and the calculations of setoff for any reason whatsoever against the Construction Milestone Payment or any Coal Milestone Payment or any interest accrued thereon except with respect to Parent’s rights of setoff with respect to to: (1) Closing Statutory Value and the Final Adjustment Amount as set forth in Section 3.05(abased thereon (the “Review Period”). In furtherance of such review, (2) the FIRPTA Amount, the 280G Amounts Buyer and the 409A Amounts as set forth in Section 3.06, Company shall provide Seller and (3) its Representatives with full access to the LC Amount employees of Buyer and the Non-Releasing Equityholder Indemnity Amount Company (including to the Chief Financial Officer of Buyer) and to all documentation, records and other information of Buyer and the Company as set forth in Section 6.11 Seller or any of its Representatives may reasonably request; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer or the Company.