THE PARTY (EITHER PURCHASER OR THE SHAREHOLDER
REPRESENTATIVE) WHOSE DETERMINATION OF THE ANNUAL EARN OUT AMOUNT WAS FURTHEST
FROM THE DETERMINATION OF THE ACCOUNTING FIRM, PROVIDED IF PURCHASER'S AND THE
SHAREHOLDER REPRESENTATIVE'S DETERMINATION OF ANNUAL EARNOUT AMOUNT WERE EACH
WITHIN PLUS OR MINUS 10% OF THE ACCOUNTING FIRM'S DETERMINATION, THE COST SHALL
BE BORNE EQUALLY BY PURCHASER AND THE SHAREHOLDER REPRESENTATIVE.
ONCE THE
ANNUAL EARN OUT AMOUNT FOR AN ANNUAL EARN OUT PERIOD HAS BEEN FINALLY DETERMINED
PURSUANT TO THIS SECTION, SUCH ANNUAL EARN OUT AMOUNT, IF ANY, SHALL BE
DELIVERED BY PURCHASER TO THE PAYING AGENT FOR DEPOSIT INTO THE PAYING AGENT
ACCOUNT WITHIN FIVE (5) DAYS AFTER SUCH FINAL DETERMINATION. NOTWITHSTANDING THE
FOREGOING OR ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE
ANNUAL EARN OUT AMOUNTS THAT PURCHASER MAY BE OBLIGATED TO PAY THE SHAREHOLDERS
PURSUANT TO THIS AGREEMENT SHALL BE FIVE MILLION DOLLARS ($5,000,000).
ANY
ANNUAL EARN OUT AMOUNT THAT, BUT FOR THE APPLICATION OF THE PRECEDING SENTENCE,
WOULD CAUSE THE AGGREGATE AMOUNT OF ANNUAL EARN OUT AMOUNTS PAYABLE BY PURCHASER
PURSUANT TO THIS AGREEMENT TO EXCEED SUCH MAXIMUM SHALL BE REDUCED AS NECESSARY
SO THAT SUCH MAXIMUM IS NOT EXCEEDED.
THE SHAREHOLDER REPRESENTATIVE
ACKNOWLEDGES AND AGREES THAT (I) ALL INFORMATION DISCLOSED ON THE ANNUAL EARN
OUT NOTICE OR OTHERWISE LEARNED BY IT IN CONNECTION WITH THE PROCEDURES SET
FORTH IN THIS SECTION IS AND SHALL BE DEEMED CONFIDENTIAL, NON-PUBLIC
INFORMATION PROTECTED BY THE PROVISIONS OF SECTION 10.17 BELOW, AND (II) THE
SOLE PURPOSE OF THE DISCLOSURE OF ANY SUCH INFORMATION PURSUANT TO THIS
SECTION IS IN CONNECTION WITH THE CALCULATION OF THE ANNUAL EARN OUT AMOUNT, IF
ANY, AND SUCH INFORMATION SHALL NOT BE DISCLOSED TO ANY THIRD PERSON OR
OTHERWISE USED FOR ANY PURPOSE, INCLUDING AS A BASIS FOR PURCHASING OR SELLING
ANY SECURITIES OF PURCHASER.
2.11
CLOSING.
ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT,
THE CLOSING OF THE TRANSACTIONS DESCRIBED IN THIS AGREEMENT (THE
"CLOSING") SHALL TAKE PLACE AT THE OFFICES OF VARNUM LLP, 333 BRIDGE ST., NW,
SUITE 1700, GRAND RAPIDS, MICHIGAN
49504, OR AT SUCH OTHER PLACE AS MAY BE
MUTUALLY AGREEABLE TO EACH OF THE PARTIES, AS SOON AS PRACTICABLE, BUT IN ANY
EVENT WITHIN TEN (10) BUSINESS DAYS, AFTER ALL CONDITIONS SET FORTH IN ARTICLES
3 AND 4 BELOW HAVE BEEN EITHER SATISFIED OR WAIVED, OTHER THAN CONDITIONS WITH
RESPECT TO ACTIONS THE RESPECTIVE PARTIES WILL TAKE AT THE CLOSING.
THE DATE
AND TIME OF THE CLOSING ARE REFERRED TO IN THIS AGREEMENT AS THE "CLOSING DATE."
2.12
CLOSING DELIVERIES OF SELLER PARTIES.
AT THE CLOSING, THE SELLER
PARTIES SHALL DO, AND EXECUTE AND DELIVER TO PURCHASER, ALL THINGS REQUIRED TO
BE PERFORMED OR DELIVERED BY THEM AT THE CLOSING UNDER THIS AGREEMENT, INCLUDING
THE FOLLOWING:
-17-
(A)
HANCOCK SHALL DELIVER ALL OF ITS STOCK CERTIFICATES AND A
LETTER OF TRANSMITTAL REQUIRED BY SECTION 2.6 ABOVE;
(B)
HANCOCK SHALL DELIVER TO PURCHASER A CERTIFICATE, IN A FORM
ACCEPTABLE TO PURCHASER, SIGNED BY A DULY