THE FINAL CLOSING STATEMENT IN REASONABLE DETAIL.
THE
FAILURE BY SHAREHOLDERS TO GIVE BUYER SUCH NOTICE WITHIN SUCH PERIOD SHALL BE
DEEMED TO CONSTITUTE THE SHAREHOLDERS' ACCEPTANCE OF THE FINAL CLOSING
STATEMENT.
THE PARTIES SHALL USE COMMERCIALLY REASONABLE EFFORTS TO RESOLVE ANY
SUCH DISPUTE.
(IV)
IF, DESPITE THE USE OF COMMERCIALLY REASONABLE EFFORTS, SUCH
DISPUTE CANNOT BE RESOLVED BY THE PARTIES WITHIN THIRTY (30) DAYS AFTER THE
SHAREHOLDERS GIVE NOTICE OF SUCH DISPUTE, THE DISPUTE WILL BE RESOLVED BY HEIN &
ASSOCIATES LLP, OR IF SUCH FIRM IS UNABLE OR UNWILLING TO SERVICE IN SUCH
CAPACITY, BY AN INDEPENDENT ACCOUNTING FIRM MUTUALLY AGREED TO BY THE
SHAREHOLDERS AND BUYER, WHOSE RESOLUTION SHALL BE BINDING AND ENFORCEABLE
AGAINST THE PARTIES THERETO.
THE PARTIES SHALL INSTRUCT SUCH INDEPENDENT
ACCOUNTANT TO RESOLVE SUCH DISPUTES BY MAKING ITS DETERMINATION WITHIN THIRTY
(30) DAYS AFTER ITS ENGAGEMENT.
ALL OF THE FEES AND EXPENSES OF SUCH
INDEPENDENT ACCOUNTANT PURSUANT TO THIS SUBPART (IV) SHALL BE APPORTIONED
BETWEEN BUYER AND THE SHAREHOLDERS BY SUCH INDEPENDENT ACCOUNTANT BASED UPON THE
INVERSE PROPORTION OF THE DISPUTED AMOUNTS RESOLVED IN FAVOR OF SUCH PARTY
(I.E., SO THAT THE PREVAILING PARTY BEARS A LESSER, OR NO, AMOUNT OF SUCH FEES,
COSTS AND EXPENSES).
(V)
IF THE PURCHASE PRICE AS FINALLY DETERMINED PURSUANT TO THIS
SECTION (I) IS LESS THAN THE ESTIMATED PURCHASE PRICE, THE SHAREHOLDERS SHALL
PAY TO BUYER AN AMOUNT EQUAL TO THE SHORTFALL, OR (II) IS MORE THAN THE
ESTIMATED PURCHASE PRICE, BUYER SHALL PAY TO THE SHAREHOLDERS AN AMOUNT EQUAL TO
THE EXCESS.
ANY SUCH PAYMENT PURSUANT TO THE PRECEDING SENTENCE SHALL BE MADE
BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE U.S. FUNDS, TO AN ACCOUNT DESIGNATED
BY BUYER OR THE SHAREHOLDERS, AS THE CASE MAY BE, ON THE LATER OF (X) THE SECOND
(2ND) BUSINESS DAY AFTER ACCEPTANCE BY THE SHAREHOLDERS OF THE FINAL CLOSING
STATEMENT OR (Y) THE SECOND (2ND) BUSINESS DAY FOLLOWING RESOLUTION (AS
CONTEMPLATED IN THIS SECTION) OF ANY DISPUTE CONCERNING THE FINAL CLOSING
STATEMENT.
(E)
EARN-OUT.
IN ADDITION TO THE PURCHASE PRICE, THE SHAREHOLDERS
SHALL BE PAID AMOUNTS, IN THE AGGREGATE, NOT TO EXCEED $2,000,000.00
(COLLECTIVELY, THE "EARN-OUT") OVER THE PERIOD COMMENCING ON THE CLOSING DATE
AND EXPIRING TWENTY-FIVE (25) MONTHS AFTER THE LAST DAY OF THE MONTH IN WHICH
THE CLOSING OCCURS, IN ACCORDANCE WITH THE PROVISIONS SET FORTH ON SCHEDULE
1.1(E) HERETO.
1.2.
CLOSING.
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT (THE "CLOSING") SHALL HAVE TAKEN PLACE PRIOR TO OR CONTEMPORANEOUSLY
WITH THE EXECUTION OF THIS AGREEMENT AT THE OFFICES OF THE SHAREHOLDERS'
COUNSEL.
THE DATE AND TIME ON WHICH THE CLOSING ACTUALLY OCCURS IS HEREIN
CALLED THE "CLOSING DATE".
3
(A)
AT THE CLOSING, THE SHAREHOLDERS, AT THEIR SOLE COST AND EXPENSE,
HAVE DELIVERED OR CAUSED TO BE DELIVERED TO BUYER THE FOLLOWING:
(I)
DULY AND VALIDLY ISSUED CERTIFICATES REPRESENTING ALL OF THE
COMPANY SHARES OWNED BENEFICIALLY OR OF RECORD BY THE SHAREHOLDERS, EACH SUCH
CERTIFICATE TO BE DULY ENDORSED IN BLANK AND IN GOOD FORM FOR TRANSFER, OR