Common use of Additional Consideration Clause in Contracts

Additional Consideration. In addition to the consideration payable to the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to this Section 1.3(b), the “Additional Consideration”): (i) On the one-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (ii) On the two-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (iii) For the avoidance of doubt, the termination of one Founder’s employment shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) to the other Founders. (iv) In the event that after the Closing and prior to the one-year anniversary or two-year anniversary of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then as a condition to the consummation of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and as set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the Closing.

Additional Consideration. In addition Each Company Stockholder shall be entitled to receive Additional Consideration pursuant to the consideration payable to the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to this Section 1.3(b), the “Additional Consideration”):terms and conditions set forth below: (ia) On If, during the one10-year anniversary of period following the Closing Agreement Date, for Buyer or the Surviving Corporation receives the Patent Award, then Buyer shall pay, or shall cause to be paid, to each share of Person that is a Company Common Stock owned by a Founder as of Stockholder immediately prior to the Closing Effective Time its Pro Rata Portion of the Additional Consideration in accordance with this Section. (as set forth on the Spreadsheet), Acquirer b) The Additional Consideration shall issue to such Founder that number of shares of Acquirer be payable in cash and Buyer Common Stock equal Shares in proportion to the Milestone 1 Per Share total Cash Merger Consideration and the total Stock Merger Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by that the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then portion of the number Additional Consideration payable in Buyer Common Shares shall be calculated based on the Buyer Average Stock Price as of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date of such terminationpayment. If the Buyer is unable to pay any portion of the Additional Consideration to the applicable Company Stockholders for any reason for a period of six (6) months after such date, Buyer shall be entitled to retain such unpaid portion of the Additional Consideration, subject to applicable abandoned property, escheat or similar Laws. (iic) On Buyer’s obligation to pay the two-year anniversary Additional Consideration is expressly conditioned upon the Company’s actual receipt of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to Patent Award within the Closing (as set forth on the Spreadsheetperiod described in Section 2.17(a), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (iii) . For the avoidance of doubt, if Buyer or the termination of one Founder’s employment Surviving Company (i) fails to receive the Patent Award, whether within such period or at any time thereafter, or (ii) receives the Patent Award after the period described in Section 2.17(a), then Buyer shall have no bearing on obligation hereunder to pay to any Person any portion of the right Patent Award, if any, as Additional Consideration and shall be entitled to retain the full amount of shares of Acquirer Common Stock issuable under this Section 1.3(b) to the other FoundersPatent Award, if any. (ivd) In The parties hereto acknowledge and agree that (i) the event that after the Closing contingent rights to receive any Additional Consideration shall not be represented by any form of certificate or other instrument, are not transferable, except by operation of law, and prior to the one-year anniversary do not constitute an equity or two-year anniversary of the Closing Date, as applicableownership interest in Buyer, (Aii) Acquirer sellsthe Company Stockholders shall not have any rights as a securityholder of Buyer as a result of their respective contingent right to receive any Additional Consideration hereunder, transfers or assigns all of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (Biii) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then as a condition no interest is payable with respect to the consummation of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and as set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock any Additional Consideration, as applicable, as of the Closing.

Additional Consideration. (a) In addition the event that the Merger Agreement shall have been terminated under circumstances where Riverwood is entitled to receive the consideration payable to Termination Fee (as defined in and in accordance with the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to this Section 1.3(bMerger Agreement), each Family Stockholder shall pay to Riverwood, on demand, an amount equal to such Family Stockholder’s pro rata share (based on the “Additional Consideration”): number of subject shares held by such stockholder on the date hereof, treating the Series B Preferred Stock on an as converted basis) of (i) On the one-year anniversary 75% of the Closing Date, for each share first $20 million of Company Common Stock owned by a Founder as of immediately prior to the Closing all Profit (as set forth on the Spreadsheetdefined in Section 4.8(b), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed ) earned by the Post-Closing Employer on the one-year anniversary Family Stockholders, collectively, and (ii) 50% of the Closing Date (and if such Founder is not employed, then no shares next $40 million of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated all Profit earned by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good ReasonFamily Stockholders, then collectively, in each case from the number consummation of shares of Acquirer Common Stock issuable under this Section 1.3(b)(iany Business Combination (as defined in the Merger Agreement) shall nevertheless be issued to such Founder that is consummated within 10 Business Days following the date two years of such termination. (b) For purposes of this Section 4.8, the “Profit” of the Family Stockholders, collectively, from any Business Combination shall equal (i) the aggregate consideration received by the Family Stockholders pursuant to such Business Combination, valuing any non-cash consideration (including any residual interest in the Company) at its Fair Market Value on the date of the consummation of the Business Combination plus (ii) On the two-year anniversary Fair Market Value, determined as of the Closing Datedate of disposition, for each share of Company Common Stock owned by a Founder all Subject Shares of the Family Stockholders disposed of after the termination of the Merger Agreement and prior to the date of the consummation of the Business Combination minus (iii) the Fair Market Value of all Subject Shares of the Family Stockholders, determined as of (x) the day immediately prior to date of the Merger Agreement or (y) the day immediately prior to the Closing date that the Company first receives notice of or otherwise becomes aware of an Acquisition Proposal (as defined in the Merger Agreement), whichever date of determination yields a lower Fair Market Value. (c) In the event that (i) prior to the Effective Time, a Superior Proposal shall have been made and (ii) the Effective Time of the Merger shall have occurred and Riverwood for any reason shall have increased the amount of the Merger Consideration (as defined in the Merger Agreement) payable over that set forth in the Merger Agreement in effect on the Spreadsheet)date hereof, Acquirer the Family Stockholders hereby agree that they will not be entitled to receive, and shall issue waive any right to receive, 50% of any such Founder additional Merger Consideration that number would otherwise have been received by the Family Stockholders, and that the full amount of any such additional Merger Consideration shall be payable by Riverwood only with respect to shares of Acquirer the Common Stock held by Persons other than the Family Stockholders. (d) For purposes of this Section 4.8, the Fair Market Value of any non-cash consideration consisting of: (i) securities listed on a national securities exchange or traded on the NASDAQ/NMS shall be equal to the Milestone 2 Per Share Stock Considerationaverage closing price per share of such security as reported on such exchange or the NASDAQ/NMS for the ten trading days prior to the date of determination; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary and (ii) consideration which is other than cash or securities of the Closing Date form specified in clause (and if such Founder is not employed, then no shares i) of Acquirer Common Stock pursuant to this Section 1.3(b)(ii4.8(d) shall be issued to determined by a nationally recognized independent investment banking firm mutually agreed upon by the parties within 10 business days of the event requiring selection of such Founder)banking firm; provided, however, that if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued parties are unable to such Founder agree within 10 Business Days following two business days after the date of such terminationevent as to the investment banking firm, then the parties shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne equally by Riverwood, on the one hand, and the Family Stockholders, on the other hand. The determination of the investment banking firm shall be binding upon the parties. (iiie) For the avoidance Any payment of doubt, the termination of one Founder’s employment shall have no bearing on the right of shares of Acquirer Common Stock issuable profit under this Section 1.3(b4.8 shall (i) if paid in cash, be paid by wire transfer of same day funds to the other Founders. (iv) In the event that after the Closing and prior to the one-year anniversary or two-year anniversary of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) account designated by Riverwood and (Bii) both the Founders become employed by the Future Acquiring Party upon the closing if paid through transfer of the Company Spin-Off (a “Company Sale”)freely tradeable securities, then as a condition to the consummation be paid through delivery of such Company Salesecurities, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and as set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the Closingsuitably endorsed for transfer.

Additional Consideration. In addition to Following the consideration payable to the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to this Section 1.3(b), the “Additional Consideration”): (i) On the one-year anniversary satisfaction of the Closing DateDistribution Threshold, for each share Purchaser shall not make any additional distributions to any of Company Common Stock owned by a Founder as of immediately prior its equityholders until Purchaser has made aggregate payments to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock Seller equal to the Milestone 1 Per Share Stock Maximum Additional Consideration; provided that such shares . In the event the Distribution Threshold has been satisfied, whether as a result of Acquirer Common Stock a direct or indirect sale of Purchaser by its equityholders (or similar transactions) or otherwise, Purchaser shall only be issued cause an amount equal to a Founder if such Founder continues the Maximum Additional Consideration to be employed paid to Seller within ten (10) Business Days of such sale by wire transfer of immediately available funds to such account as Seller may designate to Purchaser in advance in writing. Within thirty (30) days following each calendar year, Purchaser will provide Seller with written notice of (a) the amount of the payments and distributions made in respect of the equity of Purchaser since the Closing through the most recently completed calendar year, (b) the amount of capital contributions made by the Post-Closing Employer on the one-year anniversary JFL Entities in respect of the equity of Purchaser or JFL-GMG Partners, LLC or any of its Subsidiaries since the Closing Date through the most recently completed calendar year, (c) the clawback of any amounts previously paid by Purchaser or its Affiliates to the JFL Entities and (d) the amount, if such Founder is not employedany, then no shares remaining for the Distribution Threshold to be satisfied. Purchaser shall promptly, and in any event within five (5) Business Days, notify Seller of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall any dividend recapitalization or the consummation of a sale that results in payments or proceeds that will be issued to such Founder)counted in determining whether the Distribution Threshold has been satisfied; provided, however, if that any such Founder’s employment is terminated by notice regarding a sale shall not be required to provide any details regarding such sale other than (i) the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reasonstructure of the sale, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (ii) On the two-year anniversary aggregate proceeds of the Closing Datesale, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (iii) For the avoidance amount of doubt, the termination of one Founder’s employment shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) proceeds directly or indirectly paid to the other Founders. equity holders of Purchaser and the JFL Entities and (iv) In the event amount, if any, remaining for the Distribution Threshold to be satisfied. Purchaser will cause the JFL-GMG Partners LLC Agreement to provide (a) that after the Closing distributions by JFL-GMG Partners, LLC to its equityholders will be subject to compliance with this Section 6.20, and prior JFL-GMG Partners, LLC will provide Purchaser with information necessary to the one-year anniversary or two-year anniversary of the Closing Date, as applicablecomply with Section 6.20, (Ab) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock for a prohibition on transactions with controlled Affiliates that are not on an arms-length basis and (the “Company Spin-Off”c) to that Seller will be a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then as a condition to the consummation beneficiary of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and as set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the Closingprovisions.

Additional Consideration. In addition connection with the Ownership Transfer, the Series 2010-1 Noteholder’s affiliate has agreed to perform certain actions and assume certain obligations in favor of the Lock-Box Bank and for the benefit of WSF and ISF with respect to the Lock-Box Accounts. As consideration therefor, WSF agrees to pay the Series 2010-1 Noteholder (x) $258,000, which shall be earned and payable upon the first Advance Date following the execution of this Acknowledgement and (y) unless an Additional Consideration Termination Event (as defined below) has occurred, $258,000, which shall be earned and payable at such time when the Aggregate Principal Balance of the Series 2010-1 Notes reaches $50.0 million. WSF, ISF, the Trustee, PFSC and the Series 2010-1 Noteholder each agree that payment of these amounts will be netted and offset against advances made by the Series 2010-1 Noteholder under the Indenture and purchases by ISF under the PCA, notwithstanding anything in the Operative Documents to the Founders pursuant to Section 1.3(a) (such additional consideration payable contrary. Notwithstanding any netting and offsetting pursuant to this Section 1.3(b)3, (a) the Series 2010-1 Noteholder, shall be treated as receiving the full consideration due under this Acknowledgement, (b) WSF shall be treated as receiving the full consideration due under the PCA with respect to sale of the Eligible Receivables to ISF, and (c) ISF shall be treated as receiving the full advances due under the Indenture in respect of the Eligible Receivables that are subject to the Advances referred to above. For purposes of this Section 3, an “Additional Consideration Termination Event” shall be deemed to have occurred if and when the Series 2010-1 Noteholder receives satisfactory evidence that Imperial Holdings, Inc. (“Holdings”) is no longer subject to the government investigation by the United States Attorney’s Office for the District of New Hampshire first disclosed in the Form 8-K filing made by Holdings with the U.S. Securities and Exchange Commission on September 28, 2011 (the “Additional ConsiderationInvestigation”): (i) On the one-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder); provided, howeverthat, Holdings shall be deemed to be no longer subject to Investigation if such Founder’s employment (i) the Department of Justice issues a letter to Holdings indicating that it is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reasondeclining to prosecute Holdings, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (ii) On Holdings enters into a deferred prosecution or non-prosecution agreement with the two-year anniversary Department of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause Justice or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (iii) For Holdings receives other communications from the avoidance Department of doubt, Justice or other circumstances exist that would lead a reasonable person to conclude that the termination of one Founder’s employment shall have no bearing investigation has been resolved as to Holdings on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) a basis that will permit Holdings to the other Founders. (iv) In the event that after the Closing and prior to the one-year anniversary or two-year anniversary of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then continue as a condition to the consummation of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration going concern and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and as set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock will not materially impact Holdings’ structured settlement subsidiaries or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the Closingdivisions.

Additional Consideration. In addition (a) As additional consideration and in exchange for the Shares, with respect to each of the Fiscal Years ending on December 31, 2001 and December 31, 2002, Purchaser shall distribute to the consideration payable Shareholders on each Distribution Date (as defined below) the number of Parent Shares and cash equal to the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to this Section 1.3(b), the “Additional Consideration”): . For the purposes of this SECTION 2.4, "ADDITIONAL CONSIDERATION" shall mean the number of Parent Shares equal to the number determined by DIVIDING (i) On the oneapplicable dollar amount set forth opposite the applicable EBITDA amount for such Fiscal Year as reflected on EXHIBIT C hereto (the "EARN-year anniversary of OUT DOLLAR AMOUNT") by (ii) the Closing Date, for each share of Company Common Average Stock owned by a Founder as of immediately Price on the date that is two trading days prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the one-year anniversary of the Closing applicable Distribution Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founderthe "DISTRIBUTION STOCK PRICE"); providedPROVIDED, howeverHOWEVER, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (ii) On the two-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (iii) For the avoidance of doubt, the termination of one Founder’s employment shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) to the other Founders. (iv) In the event that after the Closing and prior to the one-year anniversary or two-year anniversary of the Closing Date, as applicablethat, (A) Acquirer sells, transfers or assigns all if the Distribution Stock Price is less than eighty percent (80%) of the outstanding shares Signing Stock Price, then the Distribution Stock Price shall be deemed to be eighty percent (80%) of Company Common the Signing Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) Price and (B) both if the Founders become employed by the Future Acquiring Party upon the closing Distribution Stock Price is greater than one hundred thirty percent (130%) of the Company Spin-Off (a “Company Sale”)Signing Stock Price, then as a condition to the consummation of such Company Sale, Acquirer Distribution Stock Price shall require that such third party agree be deemed to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, one hundred thirty percent (x130%) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Signing Stock Price. In lieu of delivering Additional Consideration if in the Company Sale occurs after the one-year anniversary prior to the two-year anniversary form of the Closing DateParent Shares, on the terms and as set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue Purchaser shall pay any portion of the Additional Consideration payable to the Company Non-Accredited Shareholders a number of shares of such third party’s capital stock or in cash and (2) Purchaser may elect to pay the remaining Additional Consideration, or any portion thereof, in cash; PROVIDED, at HOWEVER, that, to the election extent Purchaser pays cash in lieu of Parent Shares and the Distribution Stock Price is less than eighty percent (80%) of the Future Acquiring Party, with an equivalent value the Milestone 1 Signing Stock Consideration Price or the Milestone 2 Stock Consideration, as applicable, as greater than one hundred thirty percent (130%) of the ClosingSigning Stock Price, then, in lieu of paying the applicable Earn-Out Dollar Amount, Purchaser shall pay an amount in cash equal to the value of the Parent Shares it would have been obligated to deliver pursuant to the previous sentence. Earn-Out Dollar Amounts between levels specified on EXHIBIT C shall be determined as provided thereon.

Additional Consideration. In addition (i) If a Trigger Event (as defined below) has occurred, each Stockholder shall severally pay to the consideration payable Purchaser, at the time and on the terms described below, an amount equal to such Stockholder's Third Party Acquisition Proposal Profit (as defined below) earned (as set out below) by such Stockholder from any Acquisition Proposal that is entered into or consummated within twelve months after the Founders Termination Date. A "Trigger Event" means (x) an event which causes the Purchase Agreement to become terminable pursuant to Section 1.3(a10.1(a)(ii) or 10.1(a)(v) of the Purchase Agreement (such additional consideration payable regardless of whether the Purchase Agreement is actually terminated) or (y) a breach by a Stockholder of its obligations pursuant to Section 1(a), 1(b), 2(a) or 2(b) of this Agreement. For purposes of Section 1.3(b3(f)(i), the “Additional Consideration”): (i) On the one-year anniversary of the Closing Date, for each share of Company Common Stock owned "Third Party Acquisition Proposal Profit" earned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (ii) On the two-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (iii) For the avoidance of doubt, the termination of one Founder’s employment shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) to the other Founders. (iv) In the event that after the Closing and prior to the one-year anniversary or two-year anniversary of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then as a condition to Stockholder from the consummation of such Company Sale, Acquirer any Acquisition Proposal shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, equal (x) the Milestone 1 Stock Consideration and total consideration received by such Stockholder for all Tendered Shares of such Stockholder disposed of by such Stockholder pursuant to such Acquisition Proposal, valuing any non-cash consideration at its Fair Market Value (as defined below) on the Milestone 2 Stock Consideration if date of the Company Sale occurs consummation of the Acquisition Proposal, minus the product of (A) $11.00 multiplied by (B) the number of Tendered Shares disposed of by such Stockholder pursuant to such Acquisition Proposal, plus (y) subject to Section 3(f)(v), the Fair Market Value, determined as of the date of disposition, of all Tendered Shares of such Stockholder disposed of after the occurrence of a Trigger Event other than pursuant to such Acquisition Proposal (provided, that so long as such Stockholder participated in the Acquisition Proposal with respect to its Tendered Shares to the fullest extent permitted by the terms of such Acquisition Proposal, then only those Tendered Shares that were disposed of prior to the one-year anniversary later of twelve months following the Termination Date and four months following consummation of the Closing Date and Acquisition Proposal shall be included in the calculation made pursuant to (y) Milestone 2 above), minus the product of (A) $11.00 multiplied by (B) the number of Tendered Shares so disposed of by such Stockholder. Notwithstanding the foregoing, for purposes of calculating the Third Party Acquisition Proposal Profit earned by a Stockholder, shares of Common Stock Consideration that are Transferred to (x) an Affiliate or an Associate (as defined in the Exchange Act) of a Stockholder, (y) a trust or other entity for the economic benefit of an Affiliate or an Associate or (z) a charitable organization or entity shall not be deemed to be "disposed of" and the Third Party Acquisition Proposal Profit shall be calculated assuming such shares had been retained by the Stockholder and disposed of pursuant to the Acquisition Proposal; provided that, if the Company Sale occurs after Transfer was permitted by and effected in accordance with Section 2(a), then the one-year anniversary prior transferor Stockholder's obligation to the two-year anniversary of the Closing Date, on the terms and as set forth in pay any Third Party Acquisition Proposal Profit to Purchaser under this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (13(f)(i) issue to the Company Shareholders a number of shares in respect of such third party’s capital stock or (2) pay cash, at shares shall be reduced by the election amount of Third Party Acquisition Proposal Profit paid by the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as transferee to Purchaser in respect of the Closingsuch shares.

Additional Consideration. In addition (a) Subject to the consideration payable to conditions set forth in this Section, on the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to this Section 1.3(b), the “Additional Consideration”): (i) On the one-year first anniversary of the Closing DateEffective Time, for each share of Company Common Stock owned by a Founder as of immediately prior HomeSeekers shall deliver to the Closing (as set forth on the Spreadsheet)Shareholders, Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then certificates representing the number of shares (rounded to the nearest whole share) of Acquirer Common Stock issuable under this Section 1.3(b)(icommon stock of HomeSeekers, $.001 par value per share determined by dividing (i) shall nevertheless be issued to such Founder within 10 Business Days following Five Hundred Thousand Dollars ($500,000) (the date of such termination. "First Anniversary Payment"), by (ii) On the two-year average closing sale price of a share of HomeSeekers Common Stock as quoted on the Nasdaq for the ten (10) consecutive trading days which precede the first anniversary of the Effective Time, as reported (absent manifest error in the printing thereof) by The Wall Street Journal (Western Edition) (the "First Anniversary Average Closing Date, for each share of Company Sale Price"). The HomeSeekers Common Stock owned by a Founder so delivered shall be allocated among the Shareholders in proportion to their respective percentage ownership interest of the REI Common Stock as of immediately prior the Effective Time. The First Anniversary Payment shall be reduced by the amount that (i) the proceeds of the sales of any shares delivered to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock Shareholders pursuant to Section 2.1(b) or 2.1(c) of this Section 1.3(b)(iiAgreement plus (ii) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated the First Anniversary Average Closing Sale Price multiplied by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares delivered to the Shareholders pursuant to Section 2.1(b) or 2.1(c) of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following Agreement but not sold before the date first anniversary of such terminationthe Effective Time, adjusted for stock splits, exceeds One Million One Hundred Thousand Dollars ($1,100,000). (iiib) For the avoidance of doubt, the termination of one Founder’s employment shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) Subject to the other Founders. (iv) In the event that after the Closing and prior to the one-year anniversary or two-year anniversary of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then as a condition to the consummation of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and as conditions set forth in this Section 1.3(b)Section, except that instead on the second anniversary of shares of Acquirer Common Stockthe Effective Time, such third party HomeSeekers shall either (1) issue deliver to the Company Shareholders a Shareholders, certificates representing the number of shares (rounded to the nearest whole share) of such third party’s capital common stock or of HomeSeekers, $.001 par value per share determined by dividing (2i) pay cashFive Hundred Thousand Dollars ($500,000) (the "Second Anniversary Payment"), at by (ii) the election average closing sale price of a share of HomeSeekers Common Stock as quoted on the Nasdaq for the ten (10) consecutive trading days which precede the second anniversary of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock ConsiderationEffective Time, as applicable, reported (absent manifest error in the printing thereof) by The Wall Street Journal (Western Edition) (the "Second Anniversary Average Closing Sale Price"). The HomeSeekers Common Stock so delivered shall be allocated among the Shareholders in proportion to their respective percentage ownership interest of the REI Common Stock as of the ClosingEffective Time. The Second Anniversary Payment shall be reduced by the amount that (i) the proceeds of the sales of any shares delivered to the Shareholders pursuant to Section 2.1(b) or 2.1(c) of this Agreement plus (ii) the Second Anniversary Average Closing Sale Price multiplied by the number of shares delivered to the Shareholders pursuant to Section 2.1(b) or 2.1(c) of this Agreement but not sold before the second anniversary of the Effective Time, adjusted for stock splits, exceeds One Million Six Hundred Thousand Dollars ($1,600,000).

Additional Consideration. In addition Except as otherwise provided below, at the time of an IPO or Sale of Purchaser, Xxxxxxx will be entitled to receive Purchaser Shares, or, at the consideration payable to option of Purchaser the Founders pursuant to Section 1.3(aequivalent in cash, in an amount computed by multiplying 3% (or, if the IPO or Sale of Purchaser does not occur before 24 months after the date of Closing, 6%) (such additional consideration payable pursuant to this Section 1.3(b), by the “Additional Consideration”): product of (i) On [*] as computed below and (ii) [*] twelve-month period ending with the one-year anniversary final day of the calendar quarter immediately prior to such IPO or Sale of Purchaser. If the Sale of Purchaser is a Sale of the Stock of Purchaser and Purchaser has not opted to pay Xxxxxxx such Additional Consideration in cash as provided hereinabove at Xxxxxxx' option such Additional Consideration shall be received in cash or a mixture of cash and Purchaser Shares, in the same proportions as that received by the other current stockholders of Purchaser. For purposes of this Paragraph A, the [*] shall be computed by [*] the value of [*] in the IPO or Sale of Purchaser [*] after the IPO or immediately prior to the Sale [*] twelve month period ending with the final day of the quarter immediately prior to such IPO or Sale of Purchaser. If, and only if, an IPO occurs within 15 months of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately AND Xxxxxxx has so elected in writing prior to the Closing (as set forth a "Special Election"), Xxxxxxx shall receive the Additional Consideration in the foregoing Paragraph A on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (ii) On the two-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to occurring 15 months after the Closing (and not at the IPO), and the above calculations shall be made as set forth if the IPO had occurred on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary final day of the Closing Date (and if quarter immediately preceding such Founder is not employeddate, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) i.e., the [*] shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by calculated [*] the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then final day of the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following quarter immediately preceding the date of such termination. (iii) For the avoidance of doubt, the termination of one Founder’s employment shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) to the other Founders. (iv) In the event that 15 months after the Closing and prior to [*] for the onetwelve-year anniversary or two-year anniversary month period ending on such final day of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then as a condition to the consummation of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following quarter preceding the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs 15 months after the one-year anniversary prior to the two-year anniversary [*]. By way of the Closing Date, on the terms and as set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the Closing.example:

Additional Consideration. In addition Tube Media will provide Affiliate grants of common stock on the terms and conditions as expressly set forth in the Securities Issuance Agreement (the form of which is attached hereto as Exhibit 3), which shall contain provisions as follows: (a) Within ten (10) days after the execution of the Agreement, Tube Media will issue to Affiliate [XXXXX]* shares of common stock of Tube Media. (b) Tube Media will issue to Affiliate additional shares of common stock at the rate of [XXXXX]* shares of Tube Media common stock for each eleven million (11,000,000) TV Households (or pro rata portion if less than eleven million (11,000,000) TV Households) that first receive the Service as a result of a launch of the Service on a Station pursuant to the consideration payable to the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to this Section 1.3(b), the “Additional Consideration”): (i) On the one-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder)Agreement; provided, however, if such Founder’s employment is terminated by that TV Households that receive the Post-Closing Employer without Cause or such Founder terminates his or her employment Service in DMAs with fewer than one hundred thousand (100,000) TV Households shall not be included in the calculation of “TV Households” solely for Good Reason, then purposes of this paragraph 2(b). A schedule of TV Households in current Affiliate DMAs and the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless common stock to be issued to such Founder within 10 Business Days following twenty (20) days after launch of the date of such terminationService in each Affiliate DMA is set forth in Exhibit 2 hereto. (iic) On In the two-year anniversary event Affiliate launches the Service on any Acquired Station, or on an Affiliate Broadcast Television station in the New Orleans DMA, Tube Media shall issue additional shares of Tube Media common stock to Affiliate at the same ratio and subject to the same restrictions set forth in paragraph 2(b) above, in each case, within twenty (20) days after the launch of the Closing DateService on such Acquired Station or on such Affiliate Broadcast Television station in the New Orleans DMA, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder)case may be; provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number that in no event shall more than an aggregate of [XXXXX]* shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued pursuant to such Founder within 10 Business Days following the date of such terminationthis paragraph 2. (iiid) For All shares issued to Affiliate hereunder will be duly authorized, and when issued hereunder, will be validly issued, fully paid and non-assessable. The shares will not be registered under the avoidance Securities Act of doubt1933, the termination of one Founder’s employment as amended. All such shares shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) be issued pursuant to the other Founders.Securities Issuance Agreement in the form attached hereto as Exhibit 3. With respect to the issuance of any securities hereunder, Affiliate represents and warrants that it is an accredited investor, as such term is defined in Regulation D of the Securities and Exchange Act and that the Affiliate has such knowledge and experience in financial, investment and business matters so as to be capable of evaluating the merits and risks of the proposed investment. Affiliate hereby agrees to execute such documents as may be reasonably necessary and appropriate, and as requested by Tube Media, to permit compliance with state and federal securities laws. Affiliate is hereby granted piggyback registration rights with respect to all shares issued hereunder. * Filed under an application for confidential treatment. 1451 Xxxx Xxxxxxx Xxxxx Xxxx, Xxxxx 000 , Xx. Xxxxxxxxxx, Xxxxxxx 00000 Xx. Xxxx X. Reardon (ive) In Tube Media represents and warrants that Exhibit 4 hereto sets forth the event that after the Closing complete capitalization of Tube Media, including a listing of all outstanding equity securities, securities convertible into or exchangeable for equity securities, and prior any outstanding rights to the one-year anniversary or two-year anniversary of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then as a condition to the consummation of purchase such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and as set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the Closingsecurities.

Additional Consideration. In addition to For each twelve (12) month period (the consideration payable to "Applicable 12 Month Period") during the Founders pursuant to Section 1.3(aperiod commencing on the Closing Date and ending on the day immediately preceding the five (5) year anniversary thereof (such additional consideration payable pursuant to this Section 1.3(bthe "Five Year Period"), Purchaser shall pay to Seller an amount in cash (collectively, the “"Additional Consideration”): (i") On the one-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by difference between (a) the Post-Closing Employer on the one-year anniversary combined EBITDA (as hereinafter defined) of the Closing Date Current AIA/BSC Operation (as hereinafter defined) for such Applicable 12 Month Period and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i(b) shall be issued to such Founder$615,000 (the "Threshold"); provided, however, if such Founder’s employment is terminated by that the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then foregoing shall be subject to the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ifollowing: (i) The maximum amount payable to Seller with respect to any Applicable 12 Month Period shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination$67,000. (ii) On the two-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable The maximum aggregate amount payable under this Section 1.3(b)(ii) 1.3.3 shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination$335,000. (iii) For the avoidance of doubt, the termination of one Founder’s employment Any excess EBITDA for any Applicable 12 Month Period shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) not be carried over and credited to the other FoundersSeller for any subsequent Applicable 12 Month Period. (iv) In the event that after any particular store within the Closing and prior to Current AIA/BSC Operation is sold (whether through a sale of assets, including its book of business, stock, merger, consolidation or otherwise) ("Sale" or "Sold") or closed (a "Discontinued Store") during the one-year anniversary Five Year Period, the Threshold shall be adjusted upward or two-year anniversary of the Closing Date, downward as applicable, follows: (A) Acquirer sellsif, transfers or assigns all during the twelve (12) month period ending on the last day of the outstanding shares of Company Common Stock calendar month immediately preceding the Sale or closure (the “Company Spin-Off”"Preceding 12 Month Period"), the Discontinued Store had positive EBITDA, then the Threshold for the Applicable 12 Month Period during which the Sale or closure occurred shall be reduced by a dollar amount equal to (I) to a third party that is not an Affiliate the EBITDA of Acquirer the Discontinued Store for the Preceding 12 Month Period (the “Future Acquiring Party”"Preceding Period EBITDA"), multiplied by (II) a fraction, the numerator of which shall be the number of calendar months from the last day of the Preceding 12 Month Period to the last day of the Applicable 12 Month Period during which the Sale or closure occurred, and the denominator of which shall be 12 (the "Remaining Anticipated EBITDA"); (B) both if the Founders become employed Preceding Period EBITDA was negative, then the Threshold for the Applicable 12 Month Period during which the Sale or closure occurred shall be increased by the Future Acquiring Party upon negative Remaining Anticipated EBITDA; (C) in either event, for purposes of computing the closing EBITDA of the Company Spin-Off Discontinued Store in connection with the computation of the EBITDA for the Current AIA/BSC Operation, the Sale or closure shall be deemed to have occurred on the last day of the Preceding 12 Month Period; and (D) the Threshold for each subsequent Applicable 12 Month period shall be reduced by a “Company Sale”), then as a condition dollar amount equal to the consummation Preceding Period EBITDA, if positive, or increased by a dollar amount equal to the Preceding Period EBITDA, if negative. As an illustration of such Company Salethe foregoing, Acquirer shall require assuming that such third party agree to be bound by Acquirer’s obligations to issue(w) an Applicable 12 Month Period ends April 30, within 10 Business Days following the date of such Company Sale2005, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and a store is sold on September 15, 2004, (y) Milestone 2 Stock Consideration if the Company EBITDA for the Discontinued Store for the 12 months ended August 31, 2004 is $60,000, and (z) the EBITDA for the Discontinued Store for the four months ended August 31, 2004 is $10,000, then (a) the Sale occurs after will be deemed to have occurred on August 31, 2004; (b) the one-year anniversary prior EBITDA for the Discontinued Store of $10,000 for the four months ended August 31, 2004 will be utilized in the computation of the EBITDA for the Current AIA/BSC Operation for the Applicable 12 Month Period ended April 30, 2005; (c) the Threshold for the Applicable 12 Month Period ended April 30, 2005 will be $575,000 ($615,000 - (8/12) $60,000); and (d) the Threshold for the Applicable 12 Month Period ended April 30, 2006 and thereafter will be $555,000 ($615,000 - $60,000). (vi) In the event that the entire Current AIA/BSC Operation is Sold and/or closed (in one or more transactions) during the Five Year Period and the Sale and/or closure results in a net profit for financial reporting purposes (the "Profit"), then, in lieu of any further amounts to which Seller would be entitled under this Section 1.3.3, Seller shall be entitled to receive from Purchaser an amount equal to the two-year anniversary lesser of (A) such additional amount as would have been payable to Seller under this Section 1.3.3 had the average annualized amount paid or payable to Seller hereunder with respect to the calendar year(s) immediately preceding the date of Sale or closure continued until the end of the Closing DateFive Year Period or (B) the Profit. In the event that the entire Current AIA/BSC Operation is Sold and/or closed (in one or more transactions) during the Five Year Period and the Sale and/or closure does not result in a Profit, on the terms and as set forth in no further amounts shall be payable under this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the Closing1.3.

Additional Consideration. In addition On the terms and subject to the consideration payable to the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to ------------------------ conditions of this Section 1.3(b1.9, within 20 business days after the determination of the Additional Consideration (the "Additional Consideration Payment Date"), the “Purchaser shall pay or cause to be paid to the Seller additional consideration (the "Additional Consideration”):"), determined as follows: (a) The amount of the Additional Consideration payable by the Purchaser to the Seller on the Additional Consideration Payment Date consists of two components and shall be determined as follows: (i) On If, and only if, any of Net Sales, Restaurant EBITDA, Total EBITDA or Number of Business Units for the oneEarn-year anniversary of Out Period exceeds the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (Minimum Criteria as set forth on in the Spreadsheet)Additional Consideration Table, Acquirer then the Purchaser shall issue pay to such Founder that the Sellers the amount of Additional Consideration set forth in the Additional Consideration Table, which amounts in the aggregate, shall not exceed $3,100,000. (ii) If, and only if, each of Net Sales, Restaurant EBITDA, and Total EBITDA for the Earn-Out Period exceeds the Full Target, as set forth in the Additional Consideration Table, and if the number of shares of Acquirer Common Stock equal Business Units is at least 18, then an additional amount shall be paid as follows: the Purchaser shall pay to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the Seller (A) one-year anniversary half (1/2) of the Closing Date first $2,000,000 in Excess Restaurant EBITDA, and (and if B) one-third (1/3) of any Excess Restaurant EBITDA that is greater than such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder)initial $2,000,000 Excess Restaurant EBITDA; provided, however, if such Founder’s employment is terminated by that the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number Purchaser shall not be obligated to pay in excess of shares $5,000,000 under clause (B) of Acquirer Common Stock issuable under Section 1.5(a)(ii) of this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date of such terminationAgreement. (iib) On Not later than May 1, 2003, the twoPurchaser shall compute the amount of Net Sales, Restaurant EBITDA, Total EBITDA and Number of Business Units for the Earn-year anniversary of Out Period, and the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior Purchaser shall provide to the Closing (as set forth on Seller for its review and approval, the Spreadsheet), Acquirer shall issue to Purchaser's computations and working papers reflecting how such Founder that number of shares of Acquirer Common Stock equal computations were made. If the Sellers have any objections to the Milestone 2 Per Share Stock Consideration; provided that computation of Net Sales, Restaurant EBITDA, Total EBITDA and Number of Business Units for the Earn-out Period, they will deliver detailed statements describing their objections to the Purchaser within 30 days after receiving the Purchaser's computations and working papers reflecting how such shares of Acquirer Common Stock shall only be issued computations were made. The parties will use their reasonable efforts to a Founder if resolve any such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder); providedobjections. If, however, if such Founder’s employment is terminated the parties do not obtain final resolution of this matter within 30 days after the Purchaser has received the statements of objections, the parties shall submit the dispute for resolution in the manner and shall bear the costs thereof as described in Section 1.9(d). The Accountant's determination of the amount of Net Sales, Restaurant EBITDA, Total EBITDA and Number of Business Units for the Earn-Out Period shall be rendered by the Post-Closing Employer without Cause or such Founder terminates his or her employment Accountant in a writing setting forth in reasonable specificity the reasons for Good Reason, then each conclusion reached in its decision. The Accountant's determination shall be binding upon all parties. The Purchaser and the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) Sellers shall nevertheless be issued use their best efforts to such Founder aid the Accountant in reaching a decision within 10 Business Days following 30 days from the date the dispute is tendered to the Accountant. In computing the EBITDA for purposes of such termination. (iii) For the avoidance of doubtthis Section, the termination of one Founder’s employment Purchaser shall have no bearing make any adjustment required by the Intercompany Accounting procedures as described on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) to the other FoundersEBITDA Adjustment Guidelines, attached as Exhibit 26. (iv) In the event that after the Closing and prior to the one-year anniversary or two-year anniversary of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then as a condition to the consummation of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and as set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the Closing.

Additional Consideration. In addition (a) If the Company shall have a gross margin (determined in accordance with generally accepted accounting principles ("GAAP")) derived from the Business in the manner described in Appendix I hereto (the "Business Gross Margin") which exceeds Five Hundred Thousand Dollars ($500,000) for any fiscal year of the Buyer (the end of such fiscal years currently being March 31) starting with the Buyer's 2008 fiscal year (ending on March 31, 2008) and ending with the Buyer's 2011 fiscal year (ending March 31, 2011) (each such fiscal year of the Buyer, an "Earn-Out Year"), the Buyer shall cause to be paid in cash to the Shareholders additional consideration payable (together with the Stub Period Additional Consideration (as described herein), the "Additional Consideration") for such fiscal year equal to thirty percent (30%) of (x) the Founders pursuant Business Gross Margin for such Buyer's fiscal year, less (y) Five Hundred Thousand Dollars ($500,000), which additional consideration, if any, for each applicable fiscal year shall be paid on or prior to Section 1.3(aJune 30 of the next fiscal year; provided, however, that if the Business Gross Margin for any fiscal year does not exceed Five Hundred Thousand Dollars ($500,000) (the "Hurdle"), no Additional Consideration shall be due with respect to such additional consideration payable fiscal year pursuant to this Section 1.3(b2.03(a); provided, further, that in no event shall the aggregate Additional Consideration due pursuant to the terms of this Agreement exceed Four Million Dollars ($4,000,000). The consideration provided for in this Section 2.03(a) shall be allocated among the Shareholders ratably in accordance with their Ownership Interests. At all times prior to September 30, 2011, the Buyer shall maintain a separate set of books and records of the Company, calculated in accordance with GAAP and derived from the Business in the manner described in Appendix I hereto for the purpose of calculating the Business Gross Margin, with such books and records being made available to the Shareholders during normal business hours, subject to the terms of this Agreement, upon written request for the purposes of verifying the accuracy of the Business Gross Margin and Additional Consideration. (b) If the Company shall have a Business Gross Margin which exceeds Two Hundred and Ninety Thousand Dollars ($290,000) for the period beginning on the Closing Date and ending on March 31, 2007, the Buyer shall cause to be paid in cash to the Shareholders additional consideration (the "Stub Period Additional Consideration") for such period equal to thirty percent (30%) of (x) the Business Gross Margin for such Buyer's fiscal year, less (y) Two Hundred Ninety Thousand Dollars ($290,000), which additional consideration, if any, for each applicable fiscal year shall be paid on or prior to June 30, 2007; provided, however, that if the “Business Gross Margin for such period does not exceed Two Hundred Ninety Thousand Dollars ($290,000), no Stub Period Additional Consideration”):Consideration shall be due pursuant to this Section 2.03(b). (c) If any Change of Control Event (as defined herein) is consummated prior to March 31, 2011, then the Shareholder Representative, on behalf of himself and each other Shareholder, shall have the right, but not the obligation, to deliver, within thirty (30) days of the consummation of a Change of Control Event and in no event after March 31, 2011, a written notice to the Buyer (the "Acceleration Notice"), whereby (x) the Shareholder Representative states that a Change of Control Event has taken place, (y) the Shareholders demand a one-time cash payment of an amount equal to the Acceleration Payment (as defined below) and (z) the Shareholders confirm that in exchange for the Acceleration Payment, each Shareholder waives any and all rights to any further payments pursuant to this Section 2.03. Only the Shareholder Representative, acting with proper and full authority for all of the Shareholders, shall have the ability to deliver the Acceleration Notice. Within thirty (30) days of the receipt of an Acceleration Notice following a Change of Control Event, the Buyer shall pay an amount equal to the Acceleration Payment to the Shareholders. (d) The Buyer acknowledges that the additional consideration provided in this Section 2.03 is a material inducement to the Shareholders to enter into this Agreement. Buyer agrees that following the Closing, it shall use its commercially reasonable efforts to operate the Business and market the products of the Business in a manner consistent with the other high priority products of the Buyer, and the Major Shareholder agrees, subject to the terms of his Employment Agreement, to support and aid Buyer in such operation of the Business. (e) The "Acceleration Payment" shall be the sum of: (i) On an amount equal to thirty percent (30%) of (A) the oneaggregate Business Gross Margin for the twelve most recently completed calendar months, less (B) Five Hundred Thousand Dollars ($500,000) (such amount, for purposes of calculating the Acceleration Payment, being the "Additional Consideration" for the Earn-year anniversary Out Year in which the Acceleration Notice is delivered); plus (ii) for each full Earn-Out Year of the Closing DateBuyer following the Earn-Out Year in which the Acceleration Notice is delivered, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet)ending with March 31, Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock 2011, if any, an amount equal to one hundred forty percent (140%) of the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues Additional Consideration to be employed by the Post-Closing Employer on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock paid pursuant to this Section 1.3(b)(i2.03(e) shall be issued in respect of the immediately preceding Earn-Out Year, as calculated pursuant to such Founderthe terms of this Section 2.03(e); provided, however, if such Founder’s employment is terminated that in no event shall the Acceleration Payment be greater than the difference obtained by subtracting (x) the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number amount of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (ii) On the two-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior aggregate Additional Consideration paid to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock Shareholders pursuant to this Section 1.3(b)(ii2.03 as of the date that the Acceleration Notice from (y) shall be issued to such Founder)$4,000,000; provided, howeverfurther, that if such Founder’s employment a valid Acceleration Notice is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reasondelivered prior to March 31, 2008, then the number notwithstanding any other provision of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (iii) For the avoidance of doubt2.3, the termination of one Founder’s employment Acceleration Payment shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) be equal to the other Founders. (iv) In the event that after the Closing and prior to the one-year anniversary or two-year anniversary net present value of the Closing Date, as applicable, difference obtained by subtracting (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock Stub Period Additional Consideration paid to the Shareholders (the “Company Spin-Off”if any) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and from (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off Three Million Dollars (a “Company Sale”$3,000,000), then as calculated using a condition to the consummation discount rate of such Company Saleeight percent (8%) per annum, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and as set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicablecompounded annually, as of the Closingdate of the Acceleration Notice from March 31, 2011. (f) For purposes of this Section 2.03, "gross margins" shall mean sales (determined in accordance with GAAP) minus the sum of direct material costs and direct labor costs (including warehousing, insurance, excise taxes and shipping, each determined in the same manner as the Buyer has heretofore used, as specified on Appendix I hereto).

Additional Consideration. In addition to the consideration payable Purchase Price, an ------------------------ amount of up to an additional twenty-five percent (25%) of the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to this Section 1.3(b), the “Additional Consideration”): sum of (i) On the one-year anniversary Purchase Price plus (ii) the amount of the Debt as of the Closing Date, for each share of Company Common Stock owned Date shall be paid by a Founder as of immediately prior the Buyer to the Closing (Sellers in proportion to their percentage interests in the Company as set forth on the Spreadsheet)Schedule 2.3(a) hereto, Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal pursuant to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer sliding scale shown on the one-year anniversary table below upon the satisfaction of the obligations set forth in the table below (the "Earned Amount"). The Buyer will determine whether all or any portion of the Earned Amount will be paid in the form of cash or Qualified Shares. The obligations which must be met prior to the payment of the Earned Amount shall be the satisfaction of five performance criteria, each of which will make up 20% of the Earned Amount. The determinations of percent payout for each category will be made as of the date which is twelve (12) months after the Closing Date (the "Earned Amount Date"). The five performance criteria are: (a) Retention of existing customers of the Company and if the Subsidiary as provided in the table below, computed using the methodology set forth on Exhibit B; --------- (b) Conversion of existing resold local lines of the Company and the Subsidiary to the Choice One network as provided in the table below; (c) The sale by the Company and the Subsidiary on net facilities based lines, excluding total service resale lines, to existing customers of the Company and the Subsidiary which are sold, installed, and billing at the Earned Amount Date as provided in the table below; (d) The continuous employment of Xxxx Xxxxxx in the role of the regional Vice President for the New England region in accordance with the Employment Contract through the Earned Amount Date except in the event of termination of his employment by Choice One without "Cause" (as such Founder term is not employed, then no shares defined in the Employment Contract) or in the event of Acquirer Common Stock pursuant to this Section 1.3(b)(ihis death; and (e) shall be issued to such Founder); provided, however, if such Founder’s The continuous employment is through the Earned Amount Date as provided in the table below of those management and other employees and consultants of the Company whose names are set forth on Exhibit C hereto (unless terminated by the Post-Closing Employer Buyer without Cause --------- cause). CATEGORY ------------------------------------------------------------------------------------------------------------------- Employees Retention Conversions/1/ New Lines/2/ Xxxxxx Departures ------------------------------------------------------------------------------------------------------------------- 100% *91.00% *1800 *2000 Stay 3 Completion 80% **91% but* **1800 but* **2000 but* Stay 4 of Percent 88.25% 1687 1875 Payout for 60% **88.25% but **1687 but* **1875 but* Stay 5 Each *85.50% 1575 1750 Category 40% **85.50% but **1575 but* **1750 but* Stay 6 *82.75% 1462 1625 20% **82.75% but **1462 but* **1625 but* Stay Not applicable *80.00% 1350 1500 Total of 25% 5% 5% 5% 5% 5% Earned Amount ------------------------------------------------------------------------------------------------------------------- * = greater than or such Founder terminates his or her employment for Good Reason, then equal to ** = less than Within twenty (20) days after the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (ii) On the two-year anniversary of the Closing Earned Amount Date, for each share of Company Common Stock owned by the Buyer shall give a Founder as of immediately prior to notice (the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (iii) For the avoidance of doubt, the termination of one Founder’s employment shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b"Earned Amount Notice") to the other Founders. Sellers, in reasonable detail, setting forth the calculation of the Earned Amount and stating the manner in which it intends to pay the Earned Amount. Within twenty (iv20) In days after receiving the event that after Earned Amount Notice, the Closing and prior Sellers shall deliver to the one-year anniversary or two-year anniversary of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock Buyer a statement (the “Company Spin-Off”"Objections to Earned Amount") to a third party that is not describing their objections thereto and setting forth in reasonable detail each amount objected to, the amount proposed as an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then as a condition to the consummation of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration adjustment thereto and the Milestone 2 Stock Consideration if basis for such adjustments. If the Company Sale occurs prior Sellers do not deliver the Objections to Earned Amount as provided above, they shall be deemed to have accepted the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and Earned Amount as set forth in this Section 1.3(b)the Earned Amount Notice, except that instead which shall be final and binding on them. If the Sellers deliver the Objections to Earned Amount as provided above, the Buyer and the Sellers together shall use reasonable efforts to resolve any such objections, but if they do not reach a final resolution within twenty (20) days after the date of shares delivery of Acquirer Common Stockthe Objections to Earned Amount as to all amounts in dispute, any remaining objections shall be resolved by arbitration in accordance with the rules then in effect of the American Arbitration Association by three arbitrators, all of whom shall be certified public accountants with any of the "big five" public accounting firms which are not currently engaged by any of the parties hereto, appointed pursuant to such third party rules. The arbitration shall either (1) issue be held in Boston, Massachusetts and shall involve a reasonable amount of discovery according to limits to be established by the Company Shareholders a arbitrators. The determination of such arbitrators shall be final and binding upon the parties. __________________________ 1 If the aggregate number of shares of such third party’s capital stock conversions plus new lines is 4,500 or (2) pay cashmore, at then the election of the Future Acquiring Party, entire Earned Amount with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the Closingrespect to "Conversions" and "New Lines" shall be deemed earned.

Additional Consideration. (a) In addition the event that the Merger Agreement shall have been terminated under circumstances where Riverwood is entitled to receive the consideration payable to Termination Fee (as defined in and in accordance with the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to this Section 1.3(bMerger Agreement), the “Additional Consideration”): (i) On the one-year anniversary of the Closing Dateeach Family Stockholder shall pay to Riverwood, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet)demand, Acquirer shall issue an amount equal to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer Family Stockholder's pro rata share (based on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of subject shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to held by such Founder within 10 Business Days following stockholder on the date hereof, treating the Series B Preferred Stock on an as converted basis) of (I) 75% of the first $20 million of all Profit (as defined in Section 4.8(b)) earned by the Family Stockholders, collectively, and (II) 50% of the next $40 million of all Profit earned by the Family Stockholders, collectively, in each case from the consummation of any Business Combination (as defined in the Merger Agreement) that is consummated within two years of such termination. (iib) On For purposes of this Section 4.8, the two-year anniversary "PROFIT" of the Closing DateFamily Stockholders, for each share collectively, from any Business Combination shall equal (I) the aggregate consideration received by the Family Stockholders pursuant to such Business Combination, valuing any non-cash consideration (including any residual interest in the Company) at its Fair Market Value on the date of Company Common Stock owned by a Founder the consummation of the Business Combination PLUS (II) the Fair Market Value, determined as of the date of disposition, of all Subject Shares of the Family Stockholders disposed of after the termination of the Merger Agreement and prior to the date of the consummation of the Business Combination MINUS (III) the Fair Market Value of all Subject Shares of the Family Stockholders, determined as of (X) the day immediately prior to date of the Merger Agreement or (Y) the day immediately prior to the Closing date that the Company first receives notice of or otherwise becomes aware of an Acquisition Proposal (as set forth on defined in the SpreadsheetMerger Agreement), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the whichever date of such terminationdetermination yields a lower Fair Market Value. (iii) For the avoidance of doubt, the termination of one Founder’s employment shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) to the other Founders. (ivc) In the event that after the Closing and (I) prior to the one-year anniversary or two-year anniversary Effective Time, a Superior Proposal shall have been made and (II) the Effective Time of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all Merger shall have occurred and Riverwood for any reason shall have increased the amount of the outstanding Merger Consideration (as defined in the Merger Agreement) payable over that set forth in the Merger Agreement in effect on the date hereof, the Family Stockholders hereby agree that they will not be entitled to receive, and shall waive any right to receive, 50% of any such additional Merger Consideration that would otherwise have been received by the Family Stockholders, and that the full amount of any such additional Merger Consideration shall be payable by Riverwood only with respect to shares of Company the Common Stock held by Persons other than the Family Stockholders. (d) For purposes of this Section 4.8, the “Company SpinFair Market Value of any non-Off”cash consideration consisting of: (i) securities listed on a national securities exchange or traded on the NASDAQ/NMS shall be equal to the average closing price per share of such security as reported on such exchange or the NASDAQ/NMS for the ten trading days prior to the date of determination; and (ii) consideration which is other than cash or securities of the form specified in clause (i) of this Section 4.8(d) shall be determined by a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed nationally recognized independent investment banking firm mutually agreed upon by the Future Acquiring Party upon the closing parties within 10 business days of the Company Spin-Off (a “Company Sale”), then as a condition to the consummation event requiring selection of such Company Salebanking firm; PROVIDED, Acquirer shall require HOWEVER, that such third party if the parties are unable to agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following two business days after the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior event as to the one-year anniversary investment banking firm, then the parties shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; PROVIDED FURTHER, that the fees and expenses of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Datesuch investment banking firm shall be borne equally by Riverwood, on the terms one hand, and as set forth in the Family Stockholders, on the other hand. The determination of the investment banking firm shall be binding upon the parties. (e) Any payment of profit under this Section 1.3(b)4.8 shall (I) if paid in cash, except that instead be paid by wire transfer of shares same day funds to an account designated by Riverwood and (II) if paid through transfer of Acquirer Common Stockfreely tradeable securities, such third party shall either (1) issue to the Company Shareholders a number of shares be paid through delivery of such third party’s capital stock or (2) pay cashsecurities, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the Closingsuitably endorsed for transfer.

Additional Consideration. In addition to the consideration payable Closing Date Consideration to be delivered at Closing, the Buyer shall deliver (or cause the Parent to deliver, if appropriate) the following Additional Consideration (herein so called) to the Founders pursuant Seller at the times and upon satisfaction of the conditions set forth below: (i) If the Buyer drills and tests either of the HKE-1 bis Well or the GRB-1 Well and either of the HKE-1 bis Well or the GRB-1 Well meets the criteria set forth in the Commercial Success – Morocco (a “Morocco Success”), then the Seller shall have earned, and the Buyer shall cause the Parent to Section 1.3(aissue to the Seller as soon as reasonably practicable thereafter, shares of Parent Common Stock having a value of Six Million U.S. Dollars (USD $6,000,000) (such additional consideration payable the number of shares to be issued to be calculated by dividing $6,000,000 by the volume weighted average price per share of the Parent Common Stock on the NYSE Amex Stock Exchange for the ten (10) trading days prior to the last day the 72-hour deliverability test made as part of the definition of Commercial Success-Morocco for the first of either the HKE-1 bis Well or the GRB-1 Well to so qualify is finished), which shares will be subject to the terms and conditions of the Registration Rights Agreement for a period of six (6) months after the issuance thereof pursuant to this Section 1.3(b2(c)(i), . Buyer shall provide Seller at least five (5) business days’ prior notice before conducting such deliverability test and allow Seller to have a representative present at such test and/or review the “Additional Consideration”): (i) On the one-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date results of such terminationtest. (ii) On In the twoevent the Deventci-R2 Well meets the criteria to be a Commercial Success – Bulgaria (a “Bulgaria Success”), then the Seller shall have earned, and the Buyer shall be obligated to cause the Parent to issue to the Seller, shares of Parent Common Stock having a value of Ten Million U.S. Dollars (USD $10,000,000), with such shares to be issued by the Parent as soon as reasonably practicable following the earlier to occur of (A) the Buyer executing a multi-year anniversary gas sales contract for the sale of all or substantially all of the Closing Date, for each gas produced by such well (with such gas sales contract to be in form and substance satisfactory to the Buyer) or (B) the date the Deventci-R2 Well is connected to the Bulgartransgas pipeline or any other pipeline with significant deliverability. The number of shares to be issued is to be calculated by dividing $10,000,000 by the volume weighted average price per share of Company the Parent Common Stock owned by a Founder as of immediately on the NYSE Amex Stock Exchange for the ten (10) trading days prior to the Closing (last day the 72-hour deliverability test made as set forth on part of the Spreadsheet)definition of Commercial Success – Bulgaria for the Deventci-R2 Well to so qualify is finished, Acquirer shall issue to such Founder that number of which shares of Acquirer Common Stock equal will be subject to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary terms and conditions of the Closing Date Registration Rights Agreement for a period of six (and if such Founder is not employed, then no shares of Acquirer Common Stock 6) months after the issuance thereof pursuant to this Section 1.3(b)(ii2(c)(ii). Buyer shall provide Seller at least five (5) shall be issued business days’ prior notice before conducting any deliverability test necessary to determine a Bulgaria Success and allow Seller to have a representative present at such Founder); provided, however, if such Founder’s employment is terminated by test and/or review the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the date results of such terminationtest. (iii) For Within fifteen (15) days of issuance to Direct Bulgaria of a production concession for the avoidance Etropole Shale discovery in Bulgaria which concession covers not less than an aggregate of doubt300,000 acres (a “Shale Success”), then the termination of one Founder’s employment Seller shall have no bearing earned, and the Buyer shall cause the Parent to issue to the Seller as soon as reasonably practicable thereafter, shares of Parent Common Stock having a value of Ten Million U.S. Dollars (USD $10,000,000) (the number of shares to be issued to be calculated by dividing $10,000,000 by the volume weighted average price per share of the Parent Common Stock on the right of shares of Acquirer Common NYSE Amex Stock issuable under this Section 1.3(bExchange for the ten (10) to the other Founders. (iv) In the event that after the Closing and trading days prior to the one-year anniversary or two-year anniversary date of such production concession is granted to the Buyer), which shares will be subject to the terms and conditions of the Closing DateRegistration Rights Agreement for a period of six (6) months after the issuance thereof pursuant to this Section 2(c)(iii). Notwithstanding the foregoing, as applicable, the Buyer and the Seller hereby agree that (A) Acquirer sells, transfers or assigns all the production concession for the Etropole Shale discovery referenced in the foregoing definition of Shale Success is separate and different from the production concession for the Koynare area for which Direct Bulgaria has already submitted an application as of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) Execution Date; and (B) both to the Founders become employed extent as a result of such application a production concession for the Koynare area has been granted to Direct Bulgaria at the time of determination whether a Shale Success has been achieved, then the minimum 300,000 acre requirement referenced in the definition of Shale Success shall be reduced by the Future Acquiring Party upon the closing lesser of the Company Spin-Off (a “Company Sale”), then as a condition to the consummation of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and 100,000 acres or (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary amount of the Closing Date, on acreage covered by the terms and Koynare production concession granted to Direct Bulgaria as set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the Closingdate.

Additional Consideration. In addition (a) If, during the Initial Earn-Out Period, the Buyer achieves Bookings of at least $1,500,000, then, subject to the consideration payable provisions of this Section 1.13, the holder of each Company Share issued and outstanding immediately prior to the Founders Effective Time (other than Company Shares owned beneficially by the Buyer or the Transitory Subsidiary, Dissenting Shares and Company Shares held in the Company’s treasury) shall be entitled to receive such number of additional shares of Buyer Common Stock as is equal to the result obtained by dividing (i) $3,000,000 by (ii) the sum of (A) the number of outstanding Company Shares immediately prior to the Effective Time and (B) the number of Common Shares issuable upon exercise of all Options and Warrants vested or exercisable, as the case may be, immediately prior to the Effective Time, but excluding the Common Shares issuable due to the acceleration of the Retained Employee Double Trigger Options pursuant to Section 1.3(a4.12, and dividing such amount by (iii) the average of the last reported sale prices per share of the Buyer Common Stock on the Nasdaq National Market over the ten (10) consecutive trading days ending on the trading day that is one (1) trading day prior to the issuance of such Buyer Common Stock (the “Initial Earn-out Share Conversion Ratio”). The Initial Earn-out Share Conversion Ratio shall be subject to equitable adjustment in the event of any stock split, stock dividend, reverse stock split or similar event affecting the Buyer Common Stock between the beginning of such ten-day period and the issuance date. (b) If, during the Second Earn-Out Period, the Buyer achieves Bookings of at least $2,000,000, then, subject to the provisions of this Section 1.13, the holder of each Company Share issued and outstanding immediately prior to the Effective Time (other than Company Shares owned beneficially by the Buyer or the Transitory Subsidiary, Dissenting Shares and Company Shares held in the Company’s treasury) shall be entitled to receive such number of additional consideration payable shares of Buyer Common Stock as is equal to the result obtained by dividing (i) $1,500,000 by (ii) the sum of (A) the number of outstanding Company Shares immediately prior to the Effective Time and (B) the number of Common Shares issuable upon exercise of all Options and Warrants vested or exercisable, as the case may be, immediately prior to the Effective Time, but excluding the Common Shares issuable due to the acceleration of the Retained Employee Double Trigger Options pursuant to Section 4.12, and dividing such amount by (iii) the average of the last reported sale prices per share of the Buyer Common Stock on the Nasdaq National Market over the ten (10) consecutive trading days ending on the trading day that is one (1) trading day prior to the issuance of such Buyer Common Stock (the “Second Earn-out Share Conversion Ratio”). The Second Earn-out Share Conversion Ratio shall be subject to equitable adjustment in the event of any stock split, stock dividend, reverse stock split or similar event affecting the Buyer Common Stock between the beginning of such ten-day period and the issuance date. (c) If, during the Full Earn-Out Period, the Buyer achieves Bookings of at least $7,000,000, then, subject to the provisions of this Section 1.3(b)1.13, the holder of each Company Share issued and outstanding immediately prior to the Effective Time (other than Company Shares owned beneficially by the Buyer or the Transitory Subsidiary, Dissenting Shares and Company Shares held in the Company’s treasury) shall be entitled to receive such number of additional shares of Buyer Common Stock as is equal to the result obtained by dividing (i) the Applicable Consideration Amount by (ii) the sum of (A) the number of outstanding Company Shares immediately prior to the Effective Time and (B) the number of Common Shares issuable upon exercise of all Options and Warrants vested or exercisable, as the case may be, immediately prior to the Effective Time, but excluding the Common Shares issuable due to the acceleration of the Retained Employee Double Trigger Options pursuant to Section 4.12, and dividing such amount by (iii) the average of the last reported sale prices per share of the Buyer Common Stock on the Nasdaq National Market over the ten (10) consecutive trading days ending on the trading day that is one (1) trading day prior to the issuance of such Buyer Common Stock (the “Additional ConsiderationFull Earn-out Share Conversion Ratio”):). The Full Earn-out Share Conversion Ratio shall be subject to equitable adjustment in the event of any stock split, stock dividend, reverse stock split or similar event affecting the Buyer Common Stock between the beginning of such ten-day period and the issuance date. (d) No later than (i) April 15, 2004 with respect to the Initial Earn-out Period, (ii) July 15, 2004 with respect to the Second Earn-out Period and (iii) April 15, 2005 with respect to the Full Earn-out Period, Buyer shall prepare (or cause to be prepared) and deliver to the Indemnification Representatives, a calculation of the Bookings for the Initial Earn-out Period, the Second Earn-out Period and the Full Earn-out Period, as the case may be, and a statement of the total number, if any, of the Initial Earn-out Shares, Second Earn-out Shares and the Full Earn-out Shares, as the case may be, issuable based on such Bookings, together with any documentation as may be reasonably necessary to enable the Indemnification Representatives to assess such calculation. After receipt from the Buyer of the calculation of the Bookings for each of the Initial Earn-out Period, the Second Earn-out Period and the Full Earn-out Period, as applicable, the Indemnification Representatives shall have the right, at the expense of the Company Stockholders, and upon not less than ten (10) days’ prior notice to the Buyer, to meet with the Buyer to discuss the Buyer’s calculation and have reasonable access during normal business hours to inspect the records and working papers relating to the calculation of such Bookings and in each case solely for the purpose of verifying the calculation of the Bookings hereunder. Unless the Indemnification Representatives challenge the Buyer’s determination of the Bookings within ten (10) days after delivery of the calculation of the Bookings for each of the Initial Earn-out Period, the Second Earn-out Period and the Full Earn-out Period, as applicable, the Buyer’s determination shall be conclusive and binding for all purposes of this Agreement. (e) In the event that the Indemnification Representatives dispute the Buyer’s determination of the Bookings for the Initial Earn-out Period, the Second Earn-out Period or the Full Earn-out Period, as applicable, or there is a dispute with regard to any other provision of this Section 1.13, the Indemnification Representatives shall so notify the Buyer by delivering an Earn-Out Dispute Notice to the Buyer. With respect to disputes regarding the Buyer’s determination of the Bookings, the Indemnification Representatives shall deliver the Earn-Out Dispute Notice within ten (10) days after delivery by the Buyer of the Bookings calculation for the Initial Earn-out Period, the Second Earn-out Period or the Full Earn-out Period, as applicable. In the event of such a dispute, the Buyer and the Indemnification Representatives shall first use diligent good faith efforts to resolve such dispute among themselves. If they are unable to resolve the dispute within thirty (30) days after the delivery of such Earn-Out Dispute Notice, then the dispute shall be submitted to the Earn-Out Arbitrator for determination in accordance with the Commercial Rules in effect from time to time and the following provisions. (i) On In the one-year anniversary event of any conflict between the Closing DateCommercial Rules in effect from time to time and the provisions of this Agreement, for each share the provisions of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer this Agreement shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only prevail and be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days following the date of such terminationcontrolling. (ii) On Not later than thirty (30) days after the two-year anniversary conclusion of the Closing Datearbitration hearing, for each share of Company Common Stock owned by a Founder as of immediately prior the Earn-out Arbitrator shall prepare and distribute to the Closing (as set parties a writing setting forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to Bookings for the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed applicable period and the Earn-out Arbitrator’s reasons therefor. Any decision rendered by the PostEarn-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) out Arbitrator shall be issued final, conclusive and binding upon the parties, and judgment thereon may be entered and enforced in any court of competent jurisdiction (subject to such FounderSection 10.11); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (iii) For the avoidance of doubt, the termination of one Founder’s employment The Earn-out Arbitrator shall have no bearing on power or authority, under the right Commercial Rules or otherwise, to (x) modify or disregard any provision of shares this Agreement, including the provisions of Acquirer Common Stock issuable under this Section 1.3(b1.13(e), or (y) to address or resolve any issue not submitted by the other Foundersparties. (iv) The fees and expenses of the Earn-Out Arbitrator in connection with the resolutions of disputes pursuant to this paragraph (e) shall be shared equally by the Company Stockholders on the one hand and the Buyer on the other, provided that, if the Earn-Out Arbitrator determines that one party has adopted a position(s) that is frivolous or clearly without merit, the Earn-Out Arbitrator may, in its discretion, assign a greater portion of such fees and expenses to such party. (f) In order to support and facilitate the attainment of Bookings, the Buyer agrees, through the term of the Full Earn-out Period, to maintain four (4) fully dedicated sales personnel (provided, however that through March 31, 2004 the Buyer shall maintain five (5) fully dedicated sales personnel) and that 16 of the Buyer’s other sales personnel will be trained, at least once a calendar quarter, to sell the Products and Services. All of the Buyer’s sales personnel shall be compensated on the same basis for the sale of the Products and Services as such personnel are compensated for the sale of the Buyer’s other products and services. Buyer agrees that the price for the sale by the Buyer or any of its Affiliates of any single node of the Products and Services shall be at a price of at least $1,000. All sales of Products and Services for more than a single node shall be sold with discounts off of list price that are consistent with the discounts off of list price offered by the Buyer in the sales of its other similar products and services. Buyer shall offer the Products and Services to potential partners for redistribution at substantially similar pricing discounts as it offers its other similar products to these partners. In the event that after the Closing and prior to the one-year anniversary or two-year anniversary Buyer is in material breach of any of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then as a condition to the consummation of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and as covenants set forth in this Section 1.3(b)1.13(f) and does not cure such breach within thirty (30) days after notice from the Indemnification Representatives, except that instead of shares of Acquirer Common Stock, such third party the Buyer shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election Stockholders all of the Future Acquiring Party, Earn-Out Shares issuable with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, respect to those Earn-out Periods that have not expired as of the Closingdate of such material breach. (g) Except as provided in Section 1.13(f) above, the Company agrees and acknowledges that the Buyer may make from time to time such business decisions as it deems appropriate in the conduct of the Buyer’s business, including actions that may have an impact on Bookings, and the Company Stockholders will have no right to claim any lost earn-out or other damages as a result of such decisions so long as the actions were not taken by the Buyer in bad faith for the principal purpose of frustrating provisions of this Section. (h) The applicable Earn-out Shares shall be issued within five (5) days after (i) the expiration of the ten (10) day period for giving an Earn-out Dispute Notice, if no Earn-out Dispute Notice is given, or (ii) the resolution of the applicable Earn-out Dispute pursuant to this Section 1.13. (i) No certificates or scrip representing fractional Earn-out Shares shall be issued to Company Stockholders, and such Company Stockholders shall not be entitled to any voting rights, rights to receive any dividends or distributions or other rights as a stockholder of the Buyer with respect to any fractional Earn-out Shares that would have otherwise been issued to such Company Stockholders. In lieu of any fractional Earn-out Shares that would have otherwise been issued, each Company Stockholder that would have been entitled to receive a fractional Earn-out Share shall receive a cash payment equal to the closing price per share of the Buyer Common Stock on the Nasdaq National Market, as reported by Nasdaq, on the business day immediately preceding the issuance of such Earn-out Share, multiplied by the fraction of a share that such Company Stockholder would otherwise be entitled to receive. In the event the Buyer is acquired prior to the expiration of the Full Earn-out Period, then after the date of any such acquisition, in lieu of receiving shares of Buyer Common Stock under this Section 1.13, the Company Stockholders shall be entitled to receive as consideration, to the extent Earn-Out Shares are earned hereunder, the kind and amount of securities, cash or other property which the Company Stockholders would have been entitled to receive pursuant to such acquisition if such Earn-out Shares had been issued immediately prior to such acquisition, which consideration, in the case of securities, shall be subject to equitable adjustment in the event of any stock split, stock dividend, reverse stock split or similar event affecting such securities between the date of such acquisition and the issuance date.

Additional Consideration. In addition (a) Following the Closing, the Company shall conduct its business in accordance with the budget and expense structure previously agreed between the Buyer and the Company and summarized on Schedule 1.6(a) (the “Business Plan”). The Chief Operating Officer of the Buyer shall have the right to adjust the Business Plan in good faith based on the interim results of the Company or in light of the business of the Buyer as a whole, it being understood that after the Closing Date the business of the Company will be controlled by, and subject to the consideration payable overall management of, the Buyer. The Company acknowledges that as of the date hereof, all of the products (including intellectual property) necessary for the Business Plan have either been developed by the Company or are under development by the Company and can be developed in their entirety with the employees of the Company and its Subsidiaries existing as of the Closing Date and in accordance with the Business Plan. (b) If, for the period commencing on the Closing Date and ending on June 30, 2004, the Company achieves both Revenue and Operating Income on a level set forth on Schedule 1.6(b) (a “Dual Achievement Level”), then, subject to the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to provisions of this Section 1.3(b1.6, the Buyer shall deliver to the Company Stockholders their pro rata portion of the number of Contingent Shares corresponding to the Dual Achievement Level (with no cumulative benefit for any lower level). (c) No later than August 15, 2004, the Buyer shall prepare (or cause to be prepared) and deliver to the Stockholder Representatives, a calculation of Revenue and Operating Income and a related calculation of the number, if any, of the Contingent Shares issuable in accordance with Section 1.6(b), together with any documentation as may be reasonably necessary to enable the “Additional Consideration”):Stockholder Representatives to assess such calculation. After receipt of the calculation of the Revenue and Operating Income from the Buyer, the Stockholder Representatives shall have the right, at the expense of the Stockholder Representatives and upon not less than five days’ prior notice to the Buyer, to meet with the Buyer to discuss the Buyer’s calculation and have reasonable access during normal business hours to inspect the records and working papers relating to the calculation of such Revenue and Operating Income and in each case solely for the purpose of verifying the calculation amount of Revenue and Operating Income hereunder. Unless the Stockholder Representatives challenge the Buyer’s determination of Revenue or Operating Income within 30 days after delivery of the calculation, the Buyer’s determination shall be conclusive and binding for all purposes of this Agreement. Notwithstanding any other provision of this Agreement, the Stockholder Representatives shall have all the rights and powers of the Company Stockholders and the remedies available to the Company Stockholders to enforce the obligations of the Buyer under this Agreement including, without limitation, the provisions of this Section 1.6. (d) In the event that the Stockholder Representatives dispute the Buyer’s determination of Revenue or Operating Income, or there is a dispute with regard to any other provision of this Section 1.6, they shall so notify the Buyer by delivering an Earn-Out Dispute Notice to the Buyer. With respect to disputes regarding the Buyer’s determination of Revenue or Operating Income, the Stockholder Representatives shall deliver the Earn-Out Dispute Notice within 30 days after delivery by the Buyer of the Buyer’s written calculation of Revenue and Operating Income. In the event of such a dispute, the Buyer and the Stockholder Representatives shall first use diligent good faith efforts to resolve such dispute among themselves. If they are unable to resolve the dispute within 30 calendar days after the delivery of the Earn-Out Dispute Notice, then the dispute shall be submitted to the Earn-Out Arbitrator. (i) On the one-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed All determinations by the PostEarn-Closing Employer on the one-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock Out Arbitrator pursuant to this Section 1.3(b)(iparagraph (d) shall be issued in writing and shall be delivered to such Founder); provided, however, if such Founder’s employment is terminated the parties. The determination by the PostEarn-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then Out Arbitrator to the number resolution of shares any dispute shall be binding and conclusive upon the parties. A judgment of Acquirer Common Stock issuable under the determination made by the Earn-Out Arbitrator pursuant to this Section 1.3(b)(iparagraph (d)(i) shall nevertheless may be issued to such Founder within 10 Business Days following the date of such terminationentered into and enforced by any court having jurisdiction thereover. (ii) On the two-year anniversary The fees and expenses of the Closing Date, for each share Earn-Out Arbitrator in connection with the resolutions of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by the Post-Closing Employer on the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock disputes pursuant to this Section 1.3(b)(iiparagraph (d) shall be issued shared equally by the Stockholder Representatives on the one hand and the Buyer on the other, provided that, if the Earn-Out Arbitrator determines that one party has adopted a position(s) that is frivolous or clearly without merit, the Earn-Out Arbitrator may, in its discretion, assign a greater portion of such fees and expenses to such Founderparty. (e) The Company and the Company Stockholders agree and acknowledge that, subject to Section 1.6(a); provided, howeverthe Buyer may make from time to time such business decisions as it deems appropriate in the conduct of the Buyer’s and business, including actions that may have an impact on Revenue or Operating Income, and the Company and the Company Stockholders will have no right to claim any lost earn-out or other damages as a result of such decisions so long as the actions were not taken by the Buyer in bad faith for the principal purpose of frustrating the provisions of this Section. (f) Notwithstanding any other provision of this Agreement, if (i) the Buyer has made a claim(s) for indemnity pursuant to Article VI or Article VII, (ii) such Founder’s employment is terminated claim(s) have not been paid in full by the Post-Closing Employer without Cause Indemnifying Stockholders or such Founder terminates his otherwise resolved on the date any Contingent Shares would otherwise be due to the Indemnifying Stockholders and (iii) in the good faith estimation of the Buyer, the aggregate amount of any unpaid or her employment unresolved claim for Good Reasonindemnity exceeds the amount of any remaining portion of the Applicable Escrow Fund, then the number Buyer may retain a portion of shares the Contingent Shares otherwise due to the Indemnifying Stockholders in excess of Acquirer the remaining portion of the Applicable Escrow Fund necessary to satisfy the amount of any indemnification obligation as provided in Article VI or Article VII below. For the purposes of this Section 1.6(f), the value of a Contingent Share shall be $7.677 (subject to equitable adjustment in the event of any stock split, stock dividend, reverse stock split or similar event affecting the Buyer Common Stock issuable since the date of this Agreement). Upon the resolution of any claim for indemnity that was subject to a hold back under this Section 1.3(b)(ii) Article I, the Buyer shall nevertheless be issued to release the amount held back from such Founder claim within 10 Business Days following business days after the date of such termination. resolution and shall (iiii) For retain such portion (if any) of such amount as the avoidance Buyer is entitled to receive pursuant to the resolution of doubtsuch claim of indemnity, which shall release the termination Indemnifying Stockholders of one Founder’s employment any obligation to pay such amount to the Buyer under Article VI or Article VII and shall have no bearing on release the right Buyer of shares of Acquirer Common Stock issuable its obligation to pay any such amount to the Indemnifying Stockholders under this Section 1.3(bArticle I, as the case may be and (ii) pay to the other Founders. Indemnifying Stockholders the remaining portion (ivif any) In of such amount. Nothing herein shall limit the event that after obligations of the Closing and prior Indemnifying Stockholders to the one-year anniversary or two-year anniversary of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of the Company Spin-Off (a “Company Sale”), then as a condition to the consummation of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and as Buyer set forth in this Section 1.3(b), except that instead of shares of Acquirer Common Stock, such third party shall either (1) issue to the Company Shareholders a number of shares of such third party’s capital stock or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicable, as of the ClosingArticle VI and Article VII hereof.

Additional Consideration. In addition to the consideration payable aggregate Purchase Price of $5,000,000 pursuant to the Founders pursuant to Section 1.3(a) (such additional consideration payable pursuant to this Section 1.3(b)Agreement, the “Buyer shall purchase from the Company, and the Company shall sell to the Buyer,an aggregate of up to 192,500 Units, in exchange for the Additional Consideration”): (i) On the one-year anniversary of the Closing Date, for each share of Company Common Stock owned by a Founder as of immediately prior to the Closing (as set forth on the Spreadsheet), Acquirer which Additional Consideration shall issue to such Founder that number of shares of Acquirer Common Stock equal to the Milestone 1 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed paid by the Post-Closing Employer Buyer in installments of at least $100,000 on or before the one-year anniversary of the Closing Date thirtieth (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(i30th) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(i) shall nevertheless be issued to such Founder within 10 Business Days calendar day following the date of such termination. (ii) On the two-year anniversary payment of the Closing Dateprior installment until the total Additional Consideration has been paid, for each share with the first installment of Company Common Stock owned by a Founder the Additional Consideration to be paid on or before the thirtieth (30th) calendar day following the final payment of the aggregate Purchase Price in accordance with Section 2.4(e) of the Agreement (as of immediately prior amended in Amendment No. 3 to the Closing (Agreement). Following receipt by the Company of each payment of the Additional Consideration as set forth on above, the Spreadsheet), Acquirer Company shall issue and deliver to the Buyer, within five (5) days of such Founder that number payment, certificates representing the pro rata portion paid for by such installment of the Series B Shares, the shares of Acquirer Common Stock equal to the Milestone 2 Per Share Stock Consideration; provided that such shares of Acquirer Common Stock shall only be issued to a Founder if such Founder continues to be employed by Company’s common stock and the Post-Closing Employer on warrants underlying the two-year anniversary of the Closing Date (and if such Founder is not employed, then no shares of Acquirer Common Stock pursuant to this Section 1.3(b)(ii) shall be issued to such Founder); provided, however, if such Founder’s employment is terminated by the Post-Closing Employer without Cause or such Founder terminates his or her employment for Good Reason, then the number of shares of Acquirer Common Stock issuable under this Section 1.3(b)(ii) shall nevertheless be issued to such Founder within 10 Business Days following the date of such termination. (iii) For the avoidance of doubt, the termination of one Founder’s employment shall have no bearing on the right of shares of Acquirer Common Stock issuable under this Section 1.3(b) to the other Founders. (iv) Units. In the event that the Buyer shall fail to timely pay any installment of the Additional Consideration and does not notify the Company in writing at least five (5) days prior to such installment due date (upon which notice the Buyer shall be granted a 7-day extension), the Company may, from and after the Closing expiration of any and prior to all applicable cure periods, terminate the one-year anniversary or two-year anniversary Agreement (as amended) and the same shall become null and void, provided however that Company shall, in any event, retain the portion of the Closing Date, as applicable, (A) Acquirer sells, transfers or assigns all Additional Consideration paid. If Buyer shall fail to timely pay any installment of the outstanding shares of Company Common Stock (the “Company Spin-Off”) to a third party that is not an Affiliate of Acquirer (the “Future Acquiring Party”) and (B) both the Founders become employed by the Future Acquiring Party upon the closing of Additional Consideration, the Company Spin-Off (a “Company Sale”), then as a condition shall have no right to the consummation of such Company Sale, Acquirer shall require that such third party agree to be bound by Acquirer’s obligations to issue, within 10 Business Days following the date of such Company Sale, (x) the Milestone 1 Stock Consideration and the Milestone 2 Stock Consideration if the Company Sale occurs prior to the one-year anniversary of the Closing Date and (y) Milestone 2 Stock Consideration if the Company Sale occurs after the one-year anniversary prior to the two-year anniversary of the Closing Date, on the terms and pursue any other remedy against Buyer except as set forth in this Section 1.3(b1(a). As further inducement for the Buyer to enter into this Amendment and provide the Additional Consideration, except the Company and Buyer agree that instead of all outstanding warrants to purchase shares of Acquirer Common Stock, such third party shall either (1) issue to Stock of the Company Shareholders a number of shares of such third party’s capital stock held by the Buyer and/or its members or (2) pay cash, at the election of the Future Acquiring Party, with an equivalent value the Milestone 1 Stock Consideration or the Milestone 2 Stock Consideration, as applicableassigns shall, as of the Closingdate of this Amendment, be amended and hereinafter shall be on terms identical to the Cashless Warrants. Upon surrender of any outstanding warrant certificate or agreement by the Buyer and/or its members or assigns to the Company, the Company shall promptly cancel such warrant certificate and reissue a new warrant certificate for the same number of warrants on terms identical to the Cashless Warrants.