Common use of Net Debt Adjustment Clause in Contracts

Net Debt Adjustment. (a) Within 10 Business Days after Completion, the Vendors will cause the Vendors’ Representative by written notice (Confirmation Statement) to the Purchaser to either: (i) confirm that the Net Debt Statement delivered by the Vendors’ Representative in accordance with clause 7.1(a) was correct; (ii) advise that the Net Debt Statement delivered by the Vendors’ Representative in accordance with clause 7.1(a) was an understatement of the Net Debt as at the Purchase Price Calculation Date and the amount by which the Net Debt was understated; or (iii) advise that the Net Debt Statement delivered by the Vendors’ Representative in accordance with clause 7.1(a) was an overstatement of the Net Debt as at the Purchase Price Calculation Date and the amount by which the Net Debt was overstated. (b) If the Purchaser disagrees with the Confirmation Statement and/or the Net Debt Statement, the Purchaser must within 10 Business Days after Purchaser’s receipt of the Confirmation Statement advise the Vendors’ Representative, by written notice, that the Purchaser does not agree with the Confirmation Statement and/or the Net Debt Statement and the following: (i) the matters in respect of which the Purchaser disagrees; and (ii) the grounds on which the Purchaser disagrees, with the Confirmation Statement and/or the Net Debt Statement. (c) If the Vendors’ Representative does not receive a notice from the Purchaser in accordance with, and in the time specified in, clause 9.9(b), then: (i) each of the Vendors jointly and severally agree to pay, and will pay, any understatement of the Net Debt set out in the Confirmation Statement to the Purchaser; or (ii) the Purchaser must pay any overstatement of the Net Debt set out in the Confirmation Statement to the Vendors’ Representative, to be paid and allocated by Vendors’ Representative among the Vendors; within 15 Business Days after delivery of the Confirmation Statement. (d) If a matter of disagreement is referred to an Expert in accordance with clause 9.10, then, after the Expert makes a final decision with respect to all matters in dispute: (i) each of the Vendors jointly and severally agree to pay, and will pay, any understatement of the Net Debt as determined by the Expert; or (ii) the Purchaser must pay any overstatement of the Net Debt as determined by the Expert to the Vendors’ Representative, to be paid and allocated by Vendors’ Representative among the Vendors, within 15 Business Days after the Expert issues a final written decision in accordance with clause 9.10(g).

Net Debt Adjustment. (a) Within 10 Business Days after Completion, the Vendors will cause the Vendors’ Representative by written notice (Confirmation Statement) to the Purchaser to either: (i) confirm that the Net Debt Statement delivered The Base Closing Price will be reduced by the Vendors’ Representative in accordance with clause 7.1(a) was correct;amount, if any, by which the amount of Debt as of the Closing Date exceeds the amount of Cash as of the Closing Date (the “Net Debt”). (ii) advise that Two Business Days before the Net Closing Date, Sellers Representative will deliver to Buyer a certificate setting forth, as of the date thereof, an estimate of the amount of Cash and Debt Statement delivered expected as of the Closing Date (on a pro forma basis giving effect to the transactions contemplated by the Vendors’ Representative in accordance Transfer Agreement). The amount of Debt will be broken down by creditor, with clause 7.1(a) was an understatement of the Net Debt as at the Purchase Price Calculation Date supporting detail, and the amount of Cash will specify cash on hand and each cash equivalent, with supporting detail. If the amount of Cash as of the Closing Date minus the amount of Debt as of the Closing Date (determined as provided above) (the “Estimated Net Debt”) is less than $0, the Base Closing Price will be reduced by which such shortfall (the amount of such shortfall, the “Estimated Net Debt was understated; orAdjustment”). (iii) advise Within five Business Days of the final determination of the Final Balance Sheet pursuant to Section 2.3(b), the Closing Payment will be adjusted (the amount of any such adjustment, the “Final Net Debt Adjustment”) and the parties will make whatever payments are necessary, if any, such that the Closing Payment is what it would have been had the Estimated Net Debt equaled the Net Debt Statement delivered reflected on such Final Balance Sheet (the “Final Net Debt”). Buyer will pay any amount due to Transferring Sellers by wire transfer in immediately available funds in an amount equal to their respective Applicable Consideration Percentages, and Sellers will pay any amount due to Buyer by wire transfer in immediately available funds to the account specified by Buyer, as applicable. For example, if the Estimated Net Debt is less than $0 (thus resulting in an Estimated Net Debt Adjustment) but the Final Net Debt is $0, the Closing Payment will be increased by the Vendors’ Representative in accordance with clause 7.1(a) was an overstatement amount of the Estimated Net Debt as at the Purchase Price Calculation Date and the amount by which the Net Debt was overstatedAdjustment. (b) If the Purchaser disagrees with the Confirmation Statement and/or the Net Debt Statement, the Purchaser must within 10 Business Days after Purchaser’s receipt of the Confirmation Statement advise the Vendors’ Representative, by written notice, that the Purchaser does not agree with the Confirmation Statement and/or the Net Debt Statement and the following: (i) the matters in respect of which the Purchaser disagrees; and (ii) the grounds on which the Purchaser disagrees, with the Confirmation Statement and/or the Net Debt Statement. (c) If the Vendors’ Representative does not receive a notice from the Purchaser in accordance with, and in the time specified in, clause 9.9(b), then: (i) each of the Vendors jointly and severally agree to pay, and will pay, any understatement of the Net Debt set out in the Confirmation Statement to the Purchaser; or (ii) the Purchaser must pay any overstatement of the Net Debt set out in the Confirmation Statement to the Vendors’ Representative, to be paid and allocated by Vendors’ Representative among the Vendors; within 15 Business Days after delivery of the Confirmation Statement. (d) If a matter of disagreement is referred to an Expert in accordance with clause 9.10, then, after the Expert makes a final decision with respect to all matters in dispute: (i) each of the Vendors jointly and severally agree to pay, and will pay, any understatement of the Net Debt as determined by the Expert; or (ii) the Purchaser must pay any overstatement of the Net Debt as determined by the Expert to the Vendors’ Representative, to be paid and allocated by Vendors’ Representative among the Vendors, within 15 Business Days after the Expert issues a final written decision in accordance with clause 9.10(g).

Net Debt Adjustment. (a) Within 10 On the third (3rd) Business Days after Completion, the Vendors will cause the Vendors’ Representative by written notice (Confirmation Statement) Day prior to the Purchaser to either: Closing Date, (i) confirm that Public Company shall deliver to the Stockholder a statement prepared in good faith setting forth the Public Company Net Debt Statement delivered by as determined as of 11:59 PM (Eastern Time) on the Vendors’ Representative Business Day immediately prior to such date, including a separate line item for each component set forth in accordance with clause 7.1(a) was correct; such definition and reasonable supporting documentation used in the preparation of such statement; and (ii) advise that Private Company shall deliver to the Net Debt Statement delivered by Stockholder a statement prepared in good faith setting forth the Vendors’ Representative in accordance with clause 7.1(a) was an understatement of the Private Company Net Debt as at determined as of 11:59 PM (Eastern Time) on the Purchase Price Calculation Date Business Day immediately prior to such date, including a separate line item for each component set forth in such definition and reasonable supporting documentation used in the preparation of such statement. Each of the Public Company, on the one hand, and the amount by which Private Company or the Net Debt was understated; or (iii) advise that Stockholder, on the Net Debt Statement delivered by other hand, shall have the Vendors’ Representative in accordance with clause 7.1(a) was an overstatement of the Net Debt as at the Purchase Price Calculation Date right to review and the amount by which the Net Debt was overstated.comment on (b) If the Purchaser disagrees with the Confirmation Statement and/or the Public Company Net Debt Statement, Excess is equal to the Purchaser must within 10 Business Days after Purchaser’s receipt of the Confirmation Statement advise the Vendors’ Representative, by written notice, that the Purchaser does not agree with the Confirmation Statement and/or the Private Company Net Debt Statement and Excess, there shall be no adjustment in the following: (i) number of shares in the matters in respect Issuance, which shall remain as the Base Number of which Shares, and, for the Purchaser disagrees; and (ii) avoidance of doubt, no adjustment to the grounds on which the Purchaser disagrees, with the Confirmation Statement and/or the Net Debt StatementAdditional Cash Payment. (c) If the Vendors’ Representative does not receive Public Company Net Debt Excess less the Private Company Net Debt Excess is a notice from positive number (the Purchaser in accordance with“Positive Debt Amount”), the Base Number of Shares shall be increased by a number of shares (rounded up or down to the nearest whole share) equal to the Positive Debt Amount divided by the Public Company Common Stock Reference Price; provided that if, as a result of such adjustment, the Base Number of Shares would be increased by more than 200,000 shares (as may be adjusted for stock splits, consolidation and other similar corporate events) (the “Base Number Increase Cap”), then the parties hereto shall proceed in the time specified in, clause 9.9(b), then: following order: (i) each Public Company shall use its reasonable best efforts to obtain any waiver or consent of any relevant third party to allow, without requiring any material amendment to any existing agreement with any such relevant third party, an increase in the Base Number Increase Cap to permit the full adjustment and increase to the Base Number of Shares, in which case, the adjustment to the Base Number of Shares in this Section 1.6(c) shall be made without the limitation of the Vendors jointly and severally agree to pay, and will pay, any understatement of the Net Debt set out in the Confirmation Statement to the PurchaserBase Number Increase Cap; or (ii) Public Company may, in its sole discretion, waive the Purchaser must pay any overstatement application of the Net Base Number Increase Cap and issue a number of additional shares of Public Company Common Stock in respect of all or part of the Positive Debt set out Amount, with each share of Public Company Common Stock being valued at the Public Company Common Stock Reference Price (provided that such waiver shall not conflict with, or result in the Confirmation Statement any violation or breach of, constitute a default, or give rise to the Vendors’ Representativevesting of any right by any third party or the acceleration of any material benefit for any third party, pursuant to be paid and allocated by Vendors’ Representative among the Vendors; within 15 Business Days after delivery any of the Confirmation Statement. terms, conditions or provisions of any contract or other agreement, instrument or obligation of Public Company); and (diii) If a matter of disagreement is referred to an Expert if such consent or waiver referenced in accordance with sub-clause 9.10, then, after the Expert makes a final decision with respect to all matters in dispute: (i) each is not obtained on or prior to the extended Closing Date contemplated by Section 1.4 and the waiver contemplated by sub-clause (ii), if made, does not result in the issuance of an additional number of shares of Public Company Common Stock equal to the Vendors jointly Positive Debt Amount divided by the Public Company Common Stock Reference Price, then (x) the Additional Cash Payment shall be reduced to an amount (but not less than zero) equal to ten million US dollars (US$10,000,000) minus the difference between the Positive Debt Amount and severally agree to paythe Cap Value, and will pay, any understatement the number of Additional Shares shall equal the Net Debt Additional Cash Payment as determined so reduced divided by the Expert; or Public Company Common Stock Reference Price, and (iiy) the Purchaser must pay any overstatement Base Number of Shares shall be adjusted to equal 20,800,000 (as may be adjusted for stock splits, consolidation and other similar corporate events) plus the Net number of shares obtained by dividing the Adjusted Debt as determined Amount by the Expert Public Company Common Stock Reference Price (with any fractional shares rounded up or down to the Vendors’ Representativenearest whole share); provided, however, that, for the avoidance of doubt, the total number of shares of Public Company Common Stock to be paid issued to the Stockholder or its designee at Closing shall not exceed 21,633,333 (as may be adjusted for stock splits, consolidation and allocated by Vendors’ Representative among the Vendorsother similar corporate events). “Public Company Common Stock Reference Price” shall mean $12.00 per share of Public Company Common Stock, within 15 Business Days after the Expert issues a final written decision in accordance with clause 9.10(g).as may be adjusted for

Net Debt Adjustment. (a) Within 10 Business Days after Completion, the Vendors will cause the Vendors’ Representative by written notice (Confirmation Statement) to the Purchaser to either: (i) confirm that Attached hereto as Exhibit D is a statement (the “Estimated Net Debt Statement”) setting forth, and accompanied by reasonably detailed backup documentation of, the Company’s calculation of the Net Debt Statement delivered by (the Vendors’ Representative “Estimated Net Debt”) and setting forth each such item of Company Debt and Cash included in accordance with clause 7.1(a) was correct;such calculation in reasonable detail and the calculation of the Excess Net Debt resulting therefrom, if any (“Estimated Excess Net Debt Amount”). (ii) advise On the date that is the Net Debt Statement delivered by later of (A) thirty (30) days after the Vendors’ Representative Execution Date or (B) the date that is thirty (30) days after the date on which Parent has received the information and backup documentation it has reasonably requested in accordance writing on or prior to thirty (30) days after the Execution Date with clause 7.1(a) was an understatement of respect to the Net Debt as at the Purchase Price Calculation Date and the amount by which the Net Debt was understated; or (iii) advise that the Net Debt Statement delivered by the Vendors’ Representative in accordance with clause 7.1(a) was an overstatement of the Net Debt as at the Purchase Price Calculation Date and the amount by which the Net Debt was overstated. (b) If the Purchaser disagrees with the Confirmation Statement and/or the Net Debt Statement, the Purchaser must within 10 Business Days after Purchaser’s receipt of the Confirmation Statement advise the Vendors’ Representative, by written notice, that the Purchaser does not agree with the Confirmation Statement and/or the Estimated Net Debt Statement and the following: calculations of Estimated Net Debt and the Estimated Excess Net Debt Amount included therein, the Parent shall prepare and deliver to the Company a statement (i) the matters in respect of which the Purchaser disagrees; and (ii) the grounds on which the Purchaser disagrees, with the Confirmation Statement and/or the “Final Net Debt Statement. (c) If the Vendors’ Representative does not receive a notice from the Purchaser in accordance with, and in the time specified in, clause 9.9(b”), then: (i) each of the Vendors jointly and severally agree to pay, and will pay, any understatement which shall include a calculation of the Net Debt set out (the “Final Net Debt”), setting forth each such item of Company Debt and Cash included in such calculation in reasonable detail and the calculation of the Excess Net Debt resulting therefrom, if any (the “Final Excess Net Debt Amount”). The Company shall have a period of fifteen (15) calendar days after delivery of the Final Net Debt Statement to review such documents and make any objections in writing to the Parent (the “Net Debt Objection Notice”); provided that the Net Debt Objection Notice shall specify the amount of each such objection along with a reasonable basis and supporting documentation to substantiate each such objection. Any items not specifically objected to in the Confirmation Statement Net Debt Objection Notice will be deemed agreed upon as set forth in the Final Net Debt Statement. If the Company delivers the Net Debt Objection Notice to the Purchaser; or Parent within such fifteen (ii15)-day period, then the Parent and the Company shall attempt to resolve the matter or matters in dispute. If no Net Debt Objection Notice is delivered by the Company within such fifteen (15)-day period, then the Final Net Debt Statement and Final Excess Net Debt Amount shall be final and binding on the Parties. If disputes with respect to the Final Net Debt Statement cannot be resolved by the Parent and the Company within fifteen (15) the Purchaser must pay any overstatement calendar days after timely delivery of the Net Debt set out Objection Notice, then, at the request of the Parent or the Company, the specific items remaining in dispute (but no others) shall be submitted to BDO USA, P.C. (the Confirmation Statement “Auditor”), or if BDO USA, P.C. is not available for such assignment, such other nationally recognized independent accounting or consulting firm as shall be mutually agreed to by the Company and the Parent. The Auditor shall render its determination (it being understood that in making such determination, the Auditor shall be functioning as an accounting expert and not as an arbitrator) as to such specific items remaining in dispute (provided that (w) such Auditor shall not have performed services for the Company, the Parent, the Merger Sub or their respective Affiliates in connection with this Agreement or the Transactions and (x) the Auditor professionals engaged to resolve the dispute pursuant to the Vendors’ RepresentativeNet Debt Objection Notice shall not have performed services for the Company, the Parent, the Merger Sub or their respective Affiliates within the past three (3) years). The matters to be paid resolved by the Auditor shall be limited to the unresolved items remaining in dispute between the Parent and allocated the Company, and the Auditor shall make such determination based solely on written submissions by Vendors’ Representative among the Vendors; within 15 Business Days after Parent and the Company, and not by independent review. The Auditor shall promptly deliver to the Parent and the Company a written report setting forth its resolution of the disputes and the reasonable basis for each of its determinations, along with its determination of the Final Excess Net Debt Amount, which shall be prepared in a manner consistent with the principles set forth in this Agreement and shall be final and binding on the Parties. Prior to and until the delivery of the Confirmation Statement. Auditor’s written report, there shall be no ex parte communications between the Parties and the Auditor. In resolving any disputed item, the Auditor (dx) If shall be bound by the provisions of this Section 2.13(b), and (y) may not assign a matter of disagreement is referred value to an Expert in accordance with clause 9.10, then, after any item greater than the Expert makes a final decision with respect to all matters in dispute: (i) each greatest value for such items claimed by either the Parent or the Company or less than the smallest value for such items claimed by either the Parent or the Company. The fees and expenses of the Vendors jointly and severally agree Auditor shall be borne in the same proportion that the aggregate dollar amount of such remaining disputed items so submitted to paythe Auditor that are unsuccessfully disputed by the Company, on the one hand, and will paythe Parent, any understatement of on the Net Debt other hand, as finally determined by the Expert; or Auditor, bears to the total dollar amount of such remaining disputed items so submitted. By way of example only, if accrued interest is the only disputed item submitted to the Auditor, and the Company claims that accrued is one thousand dollars (ii$1,000), and the Parent contests only three hundred dollars ($300) the Purchaser must pay any overstatement of the Net Debt as determined amount claimed by the Expert Company and if the Auditor ultimately resolves the dispute by awarding the Stockholders two hundred dollars ($200) of the three hundred dollars ($300) contested, then the costs and expenses of the Auditor will be allocated sixty-seven percent (67%) (i.e., 200 / 300) to the Vendors’ RepresentativeParent and thirty-three percent (33%) (i.e., 100 / 300) to be paid and allocated by Vendors’ Representative among the Vendors, within 15 Business Days after the Expert issues a final written decision in accordance with clause 9.10(g)Stockholders.

Net Debt Adjustment. As soon as practicable following the Closing Date, but not later than ninety (a90) Within 10 Business Days after Completiondays thereafter, Ernst & Young LLP (the Vendors will cause "Buyers' Accountant") shall prepare and deliver a certificate proposing the Vendors’ Representative by written notice (Confirmation Statement) to final amount of Earned Cash of the Purchaser to either: (i) confirm that Company and its Subsidiaries as of the Net Debt Statement delivered by Closing Date utilizing the Vendors’ Representative in accordance with clause 7.1(a) was correct; (ii) advise that the Net Debt Statement delivered by the Vendors’ Representative in accordance with clause 7.1(a) was an understatement Company Policies, and a calculation of the Net Debt Amount as at such date (the Purchase Price Calculation Date "Earned Cash Certificate"). Deloitte & Touche LLP (the "Sellers' Accountant") shall review the Final Earned Cash Certificate. In the event Buyers' Accountant and Sellers' Accountant cannot agree on the final amount of Earned Cash and the amount by which the final Net Debt was understated; or Amount the matter shall be submitted to the EBITDA Arbitrator. The EBITDA Arbitrator shall review the proposed Final Earned Cash Certificate and shall independently verify the accuracy and completeness thereof and shall make such adjustments thereto as it, in its independent judgment, believes appropriate to make such Final Earned Cash Certificate fairly reflect the amount of Earned Cash available on the U.S. Closing Date utilizing the Company Policies. If the Earned Cash as reflected on the Earned Cash Certificate (iiiagreed by the Sellers' Accountant and Buyers' Accountant or determined by the EBITDA Arbitrator) advise that is less than the Preliminary Earned Cash, then KAS shall pay in cash to Phoenix U.S. the amount of the difference (the "Net Debt Statement delivered by Adjustment") which shall be treated as a reduction in the Vendors’ Representative U.S. Purchase Price. If the Earned Cash or the Final Earned Cash Certificate is more than the amount of Earned Cash set forth on the Preliminary Earned Cash Certificate, then Phoenix U.S. will pay in accordance with clause 7.1(a) was an overstatement cash to KAS the amount of the Net Debt difference as at the additional U.S. Purchase Price Calculation Date and the amount by which the Net Debt was overstated. (b) If the Purchaser disagrees with the Confirmation Statement and/or the Net Debt StatementPrice. The payment, the Purchaser must within 10 Business Days after Purchaser’s receipt of the Confirmation Statement advise the Vendors’ Representative, by written notice, that the Purchaser does not agree with the Confirmation Statement and/or the Net Debt Statement and the following: (i) the matters in respect of which the Purchaser disagrees; and (ii) the grounds on which the Purchaser disagrees, with the Confirmation Statement and/or the Net Debt Statement. (c) If the Vendors’ Representative does not receive a notice from the Purchaser in accordance with, and in the time specified in, clause 9.9(b), then: (i) each of the Vendors jointly and severally agree to pay, and will pay, any understatement of the Net Debt set out in the Confirmation Statement to the Purchaser; or (ii) the Purchaser must pay any overstatement of the Net Debt set out in the Confirmation Statement to the Vendors’ Representativeif any, to be paid and allocated by Vendors’ Representative among the Vendors; made under this Section 2.5.2 shall be made, without interest thereon, within 15 Business Days five (5) business days after delivery of the Confirmation Statement. (d) If a matter of disagreement is referred Final Earned Cash Certificate by the Buyers' Accountant to an Expert in accordance with clause 9.10, then, after the Expert makes a final decision with respect to all matters in dispute: (i) each Parties. The fees and expenses of the Vendors jointly Buyers' Accountant in connection with the audit shall be paid by the Buyers, the fees and severally agree to payexpenses of the Sellers' Accountants shall be paid by the Sellers, and will pay, any understatement the Buyers and Sellers shall each pay one half of the Net Debt as determined by the Expert; or (ii) the Purchaser must pay any overstatement fees of the Net Debt as determined by the Expert to the Vendors’ Representative, to be paid and allocated by Vendors’ Representative among the Vendors, within 15 Business Days after the Expert issues a final written decision in accordance with clause 9.10(g)EBITDA Arbitrator.