Common use of Contingent Consideration Clause in Contracts

Contingent Consideration. (a) Purchaser further agrees, in the event that the EBIT of Purchaser exceeds $2,000,000 in either of (i) the twelve month period immediately following the Closing Date ("Year One") or (ii) the twelve month period immediately following Year One ("Year Two"), to pay to Seller the additional sum of One Million ($1,000,000) Dollars (the "Contingent Consideration"). The Contingent Consideration shall be paid by Purchaser to Seller not later than thirty (30) days following the delivery to Seller of Purchaser's financial statements for Year One or Year Two, as the case may be. For purposes of verifying Purchaser's calculation of EBIT during Year One and/or Year Two, Purchaser shall permit Seller or its authorized agents after reasonable prior written notice to review, at Seller's expense, Purchaser's books of account during normal business hours; provided that, if Seller's audit reveals that EBIT was miscalculated by Purchaser and underreported to Seller by five percent (5%) or more, then Seller's costs and expenses of such audit shall be reimbursed by Purchaser within ten (10) days of submission from Seller to Purchaser of any invoices for such costs and expenses. (b) It is the intent of the parties to develop a method of calculating EBIT of the Purchaser which will be equitable to both parties and which will not artificially increase or decrease the annual EBIT amounts. EBIT shall be computed using the same U.S. generally accepted accounting principles ("GAAP") used by Del in the preparation of its financial statements. For purposes of calculating EBIT hereunder, EBIT will be costed using the FIFO method. For purposes of this Section 2.4, EBIT Products shall include any products sold by Purchaser which are currently sold by the Gendex Division, products sold under the Distribution Agreement (as herein defined), and any comparable or similar new products subsequently developed by Purchaser (hereinafter "EBIT Products"); provided, however, that existing products transferred to Purchaser from its affiliates shall not be included in calculating EBIT so long as the revenues and related costs of any such products transferred to Purchaser shall be determined in a manner consistent with how Purchaser determines the revenues and related costs of its other products. Sales of EBIT Products to other business units of Del shall be recorded at the time of shipment by Purchaser to Del's other business units. The selling price of EBIT Products sold or transferred by Purchaser to Del's other business units shall be determined in accordance with third party pricing practices. Purchaser may include expenses for direct or indirect costs incurred by or on behalf of Purchaser but shall not include any general overhead or stewardship charges from Del or its affiliates, including Del's corporate overhead expenses.

Contingent Consideration. (a) Purchaser further agreesOn or prior to March 31, 2008, the Company shall prepare and deliver to the Authorized Representative a detailed calculation of Hantro’s consolidated net revenue for the fiscal year ending December 31, 2007, calculated in accordance with Finnish GAAP consistently with prior fiscal years and reconciled to U.S. GAAP employing Applicable Reconciliation Standards (“Hantro 2007 Net Revenue”). Hantro 2007 Net Revenue shall be calculated based on the net revenue of Hantro and its Subsidiaries as if Hantro had continued post-Closing on a stand-alone basis independent of the Company and otherwise in accordance with the requirements of Section 9.10. For a period of 30 days after receipt by the Authorized Representative of the Hantro 2007 Net Revenue calculation, the Authorized Representative shall have the right to review such calculation and, in connection therewith, shall have access during normal business hours, to the event books and records (including any accountants’ work papers) of Hantro and the Hantro Subsidiaries. Unless the Authorized Representative informs the Company no later than 15 days after such 30-day period to the effect that the EBIT Hantro Stockholders dispute the Hantro 2007 Net Revenue calculation, the calculation shall be final, conclusive and binding on the parties thereafter, and on or prior to April 30, 2008, the Company shall issue to the Hantro Stockholders a number of Purchaser shares of Company Common Stock (the “Contingent Consideration”) to be determined by adding the following two amounts of shares: The first amount of shares being determined as follows: (i) If Hantro 2007 Net Revenue is equal to or less than €6,000,000, there shall be no Contingent Consideration paid to Hantro Stockholders and no additional shares of Company Common Stock shall be issued in respect thereof; (ii) If Hantro 2007 Net Revenue exceeds $2,000,000 in either €6,000,000 but is equal to or less than €9,000,000, the Contingent Consideration shall be equal to the product of (x) 10,000,000 shares of Company Common Stock and (y) a fraction, (i) the twelve month period immediately following numerator of which is the Closing Date ("Year One") or amount by which Hantro 2007 Net Revenue exceeds €6,000,000, and (ii) the twelve month period immediately following Year One denominator of which is €3,000,000; or ("Year Two")iii) If Hantro 2007 Net Revenue exceeds €9,000,000, to pay to Seller the additional sum of One Million ($1,000,000) Dollars (the "Contingent Consideration"). The Contingent Consideration shall be equal to 10,000,000 shares of Company Common Stock; and the second amount of shares being determined as follows: (iv) If Hantro 2007 Net Revenue is equal to or less than €7,500,000, there shall be no Contingent Consideration paid by Purchaser to Seller not later Hantro Stockholders (other than thirty the Contingent Consideration payable pursuant to clause (30) days following the delivery to Seller of Purchaser's financial statements for Year One or Year Two, as the case may be. For purposes of verifying Purchaser's calculation of EBIT during Year One and/or Year Two, Purchaser shall permit Seller or its authorized agents after reasonable prior written notice to review, at Seller's expense, Purchaser's books of account during normal business hours; provided thatii), if Seller's audit reveals that EBIT was miscalculated by Purchaser any) and underreported to Seller by five percent (5%) or more, then Seller's costs and expenses no additional shares of such audit Company Common Stock shall be reimbursed issued in respect thereof; (v) If Hantro 2007 Net Revenue exceeds €7,500,000 but is equal to or less than €9,000,000, the Contingent Consideration shall be equal to the product of (x) 2,500,000 shares of Company Common Stock and (y) a fraction, (i) the numerator of which is the amount by Purchaser within ten which Hantro 2007 Net Revenue exceeds €7,500,000, and (10ii) days the denominator of submission from Seller which is €1,500,000; or (vi) If Hantro 2007 Net Revenue exceeds €9,000,000, the Contingent Consideration shall be equal to Purchaser 2,500,000 shares of any invoices for such costs and expensesCompany Common Stock. (b) It is If the intent Company receives notice from the Authorized Representative within 15 days after the aforementioned 30-day period that the Hantro Stockholders dispute the Hantro 2007 Net Revenue calculation, then the Company and the Hantro Stockholders (with the Authorized Representative acting as their representative) shall promptly thereafter meet in good faith to attempt to resolve the dispute. Any notice from the Authorized Representative to the Company disputing the Hantro 2007 Net Revenue calculation as aforesaid shall specify in reasonable detail the nature and amount of said dispute. If and to the extent the Company and the Authorized Representative resolve any such dispute, then (A) such resolution shall be set forth in writing signed by the Company and the Authorized Representative and (B) if such resolution would require the Company to issue Contingent Consideration to the Hantro Stockholders pursuant to this Section 2.2, then the Company shall issue such shares within five (5) days of the parties to develop a method of calculating EBIT date of the Purchaser which will be equitable resolution. A resolution signed by the Authorized Representative pursuant to both parties this Section 2.2, shall constitute a decision of the Hantro Stockholders and which will not artificially increase or decrease the annual EBIT amounts. EBIT shall be computed using final, binding and conclusive upon the Hantro Stockholders; and the Company may rely upon any such resolution signed by the Authorized Representative as being the resolution of the Hantro Stockholders. The Company is hereby relieved from any liability to any person for any acts done by it in accordance with such resolution signed by the Authorized Representative. If and to the extent the Company and the Hantro Stockholders (with the Authorized Representative acting as their representative) are unable to agree upon a resolution of the dispute within 30 days after receipt by the Company of the Authorized Representative’s notice regarding the existence of such dispute, then such dispute shall be resolved by an independent internationally recognized accounting firm, selected, within 15 days thereafter by mutual written agreement of the Company and the Authorized Representative, which is not then providing, and has not provided at any time during the period commencing one-year prior to the Closing Date through the date of their determination pursuant to this Section 2.2, services to any of (A) the Company or any of its Affiliates or (B) Hantro or any of its Affiliates (“Independent Accountants”) pursuant to the same U.S. generally accepted accounting principles ("GAAP") used by Del procedures and effect as set forth in Section 2.3. If the preparation of its financial statements. For purposes of calculating EBIT hereunderCompany and the Authorized Representative are unable to agree on mutually acceptable Independent Accountants during the aforesaid 15-day period, EBIT will be costed using the FIFO method. For purposes of this Section 2.4, EBIT Products shall include any products sold by Purchaser which are currently sold by the Gendex Division, products sold under the Distribution Agreement (as herein defined), and any comparable or similar new products subsequently developed by Purchaser (hereinafter "EBIT Products"); provided, however, that existing products transferred to Purchaser from its affiliates shall not be included in calculating EBIT so long as the revenues and related costs of any then such products transferred to Purchaser Independent Accountants shall be determined in a manner consistent with how Purchaser determines selected, within 10 days thereafter, by mutual agreement of the revenues Company’s independent public accountant and related costs of its other products. Sales of EBIT Products to other business units of Del shall be recorded Hantro’s independent public accountants at the time of shipment by Purchaser to Del's other business units. The selling price Closing, joint notice of EBIT Products sold or transferred by Purchaser to Del's other business units which appointment shall be provided by such accountants to the Company and the Authorized Representative. (c) The Contingent Consideration determined in accordance with third party pricing practicesSection 2.2(b) shall be allocated among the Hantro Stockholders, as set forth by the Authorized Representative to the Company in writing within 10 days from the date the Contingent Consideration was finally settled, and such allocation as informed by the Authorized Representative shall be final, conclusive and binding on the Hantro Stockholders. Purchaser may include expenses for direct or indirect costs incurred The Company is hereby relieved from any liability to any Hantro Stockholder based on the allocation of the Contingent Consideration as informed by or on behalf of Purchaser but shall not include any general overhead or stewardship charges from Del or its affiliates, including Del's corporate overhead expensesthe Authorized Representative.

Contingent Consideration. (a) Purchaser further agrees, in In the event that the EBIT of Purchaser exceeds $2,000,000 in either of the 2008 Gross Revenue Target or the 2008 Increased Gross Revenue Target (i) the twelve month period immediately following the Closing Date (each, a "Year OneTarget") or (iias defined below) is met, the twelve month period immediately following Year One ("Year Two"), amount set forth below with respect to pay such achieved Target will be payable by Parent to Seller the additional sum of One Million ($1,000,000) Dollars Shareholders (the "Contingent Gross Revenue Consideration") in addition to any other amounts payable hereunder: • $880,000 (less one percent of such amount, which shall be paid to Xxxxxxxxx Xxxxx & Company) will be payable to the Shareholders in accordance with the Merger Consideration Certificate promptly after financial results for the 12-month period beginning at the Effective Time (but in no event later than 30 days after the end of fiscal year 2008). , provided the Company, whether operated as a subsidiary of or a division in the Surviving Corporation generates gross revenues of more than $6,000,000 and less than $7,000,000 in the 12-month period beginning at the Effective Time (the "2008 Gross Revenue Target"); OR • $1,230,000 (less one percent of such amount, which shall be paid to Xxxxxxxxx Xxxxx & Company) will be payable to the Shareholders in accordance with the Merger Consideration Certificate promptly after financial results for the 12-month period beginning at the Effective Time (but in no event later than 30 days after the end of fiscal year 2008), provided the Company, whether operated as a subsidiary of or a division in the Surviving Corporation generates gross revenues of at least $7,000,000 in the 12-month period beginning at the Effective Time (the "2008 Increased Gross Revenue Target"); (i) The Contingent Gross Revenue Consideration shall be determined and paid within 30 days following the end of Parent's 2008 fiscal year by Purchaser wire transfer of immediately available funds, promptly following the determination of the Contingent Gross Revenue Consideration, to Seller not such accounts for each Shareholder as are set forth in the Merger Consideration Certificate. (ii) Not later than thirty November 30, 2008, Parent shall deliver to each Shareholder a copy of the financial statements of Parent and a certificate showing the calculation of the Contingent Gross Revenue Consideration for the period from November 1, 2007 to October 31, 2008, certified by the Chief Financial Officer of Parent to be a good faith calculation of the Contingent Gross Revenue Consideration derived from the accounting records of Parent (30the "Contingent Gross Revenue Certificate"). (iii) Parent shall make available to the Shareholders Representative copies of all work papers, documents, receipts, invoices and other materials and grant the Shareholders Representative such access to Parent's personnel and outside auditors during regular business hours as may be necessary or reasonably requested by the Shareholders Representative in his review of the Contingent Gross Revenue Certificate or in connection with any dispute or disagreement relating to the determination of the Contingent Gross Revenue Consideration. If the Shareholders Representative does not timely deliver a Contingent Gross Revenue Consideration Certificate Contest Notice (as defined below) in accordance with Section 1.2(b)(v), the Contingent Gross Revenue Consideration Certificate shall be final and binding on all Parties. (iv) In the event the Shareholder Representative contests any part of the calculation of the Contingent Gross Revenue Consideration, as set forth in the Contingent Gross Revenue Consideration Certificate, the Shareholders Representative shall give Parent written notice of his objections thereto (the "Contingent Gross Revenue Consideration Certificate Contest Notice") within 15 days following the delivery to Seller of Purchaser's financial statements for Year One or Year Two, as the case may be. For purposes of verifying Purchaser's calculation of EBIT during Year One and/or Year Two, Purchaser shall permit Seller or its authorized agents after reasonable prior written notice to review, at Seller's expense, Purchaser's books of account during normal business hours; provided that, if Seller's audit reveals that EBIT was miscalculated by Purchaser and underreported to Seller by five percent (5%) or more, then Seller's costs and expenses of such audit shall be reimbursed by Purchaser within ten (10) days of submission from Seller to Purchaser of any invoices for such costs and expensesContingent Gross Revenue Consideration Certificate. (bv) It is During the intent 30-day period following the delivery of the parties Contingent Gross Revenue Consideration Certificate Contest Notice, Parent and the Shareholders Representative shall attempt to develop a method of calculating EBIT resolve in writing any differences which Parent and the Shareholders Representative may have with respect to any matter specified in the Contingent Gross Revenue Consideration Certificate Contest Notice. If at the end of the Purchaser 30-day period, Parent and the Shareholders Representative shall fail to reach a written agreement with respect to all of such matters, then all such matters specified in the Contingent Gross Revenue Consideration Contest Notice with respect to which will be equitable to both parties and which will a written agreement has not artificially increase or decrease the annual EBIT amounts. EBIT been reached shall be computed using the same U.S. generally accepted accounting principles ("GAAP") used by Del in the preparation of its financial statements. For purposes of calculating EBIT hereunder, EBIT will be costed using the FIFO method. For purposes of this Section 2.4, EBIT Products shall include any products sold by Purchaser which are currently sold by the Gendex Division, products sold under the Distribution Agreement (as herein defined), and any comparable or similar new products subsequently developed by Purchaser (hereinafter "EBIT Products"); provided, however, that existing products transferred to Purchaser from its affiliates shall not be included in calculating EBIT so long as the revenues and related costs of any such products transferred to Purchaser shall be determined in a manner consistent with how Purchaser determines the revenues and related costs of its other products. Sales of EBIT Products to other business units of Del shall be recorded at the time of shipment by Purchaser to Del's other business units. The selling price of EBIT Products sold or transferred by Purchaser to Del's other business units shall be determined resolved in accordance with third party pricing practices. Purchaser may include expenses for direct the provisions set forth in Section 1.2(d)(iii). (vi) During the 12-month period beginning on the day after the Closing Date, the Company will operate as a separate division or indirect costs incurred by or on behalf of Purchaser but shall not include any general overhead or stewardship charges from Del or its affiliatesbusiness unit within Parent in accordance with the Company's business practices and policies, including Del's corporate overhead expensescustomer retention, as in effect in substantially the same manner as before the Closing. (vii) At the time any Contingent Gross Revenue Consideration is paid to the Shareholders, $120,000 shall be paid concurrently by Parent to Xxxxxx Xxx Xxxx.

Contingent Consideration. (a) Purchaser further agreesWith respect to each Annual Contingent Consideration Period, each Stockholder shall be eligible to receive additional contingent consideration as set forth below: (i) Revenue-Based Consideration: 1) If revenue, as calculated in accordance with GAAP, for an Annual Contingent Consideration Period (the event that “Actual Revenue”) equals or exceeds 125% of the EBIT Annual Revenue Target for such fiscal year, then (1) the number of Purchaser shares of Parent Common Stock equal to the Maximum Revenue Contingent Stock for such Stockholder with respect to such fiscal year, as set forth in Table B, shall vest and (2) such Stockholder shall receive an amount in cash equal to such Stockholder’s Maximum Revenue Contingent Cash with respect to such fiscal year, as set forth in Table B. 2) If the Actual Revenue for a fiscal year equals or exceeds $2,000,000 70% and is less than 125% of the Annual Revenue Target for such fiscal year, then (1) with respect to each Stockholder, a number of shares of Parent Common Stock shall vest equal to the product of (A) such Stockholder’s Maximum Revenue Contingent Stock for such fiscal year, as set forth in either of Table B, and (B) (i) the twelve month period immediately following the Closing Date ("Year One") or Actual Revenue for such fiscal year divided by (ii) 125% of the twelve month period immediately following Year One ("Year Two"), to pay to Seller the additional sum of One Million ($1,000,000) Dollars Annual Revenue Target for such fiscal year (the "“Annual Revenue Percentage”) and (2) each Stockholder shall receive an amount in cash equal to the product of (A) the Stockholder’s respective Maximum Revenue Contingent Consideration"). The Cash for such fiscal year, as set forth in Table B, and (B) the Annual Revenue Percentage for such fiscal year; and any remainder of such Stockholder’s Maximum Revenue Contingent Consideration Stock or Maximum Revenue Contingent Cash shall be paid forfeited. 3) If the Actual Revenue for a fiscal year is less than 70% of the Annual Revenue Target for such fiscal year, then (1) none of a Stockholder’s Maximum Revenue Contingent Stock for such fiscal year shall vest and all such shares shall be forfeited and (2) no Stockholder shall receive any cash payment with respect to his or her Maximum Revenue Contingent Cash for such fiscal year and such Maximum Revenue Contingent Cash shall be forfeited. 4) The Annual Revenue Target and the aggregate Maximum Revenue Contingent Stock for all Stockholders for each fiscal year are set forth on Table A below. Each Stockholder’s Maximum Revenue Contingent Stock and Maximum Revenue Contingent Cash by Purchaser to Seller not later than thirty (30) days following fiscal year are set forth on Table B below and are calculated by multiplying each of the delivery to Seller Maximum Revenue Contingent Stock and Maximum Revenue Contingent Cash for such fiscal year by the Company ownership percentage of Purchaser's financial statements for Year One or Year Twosuch Stockholder, as the case may be. For purposes of verifying Purchaser's calculation of EBIT during Year One and/or Year Two, Purchaser shall permit Seller or its authorized agents after reasonable prior written notice to review, at Seller's expense, Purchaser's books of account during normal business hours; provided that, if Seller's audit reveals that EBIT was miscalculated by Purchaser and underreported to Seller by five percent (5%) or more, then Seller's costs and expenses of such audit shall be reimbursed by Purchaser within ten (10) days of submission from Seller to Purchaser of any invoices for such costs and expensesset forth in Table D below. (bii) It is the intent EBITDA-Based Consideration: 1) If Actual EBITDA for an Annual Contingent Consideration Period equals or exceeds 125% of the parties Annual EBITDA Target for such fiscal year, then (1) the number of shares of Parent Common Stock equal to develop the Maximum EBITDA Contingent Stock for such fiscal year with respect to such Stockholder, as set forth on Table C, shall vest and (2) such Stockholder shall receive an amount in cash equal to such Stockholder’s Maximum EBITDA Contingent Cash for such fiscal year, as set forth in Table C. 2) If the Actual EBITDA for a method of calculating EBIT fiscal year equals or exceeds 70% and is less than 125% of the Purchaser which will be equitable Annual EBITDA Target for such fiscal year, then (1) with respect to both parties each Stockholder, a number of shares of Parent Common Stock shall vest equal to the product of (A) such Stockholder’s Maximum EBITDA Contingent Stock for such fiscal year, as set forth on Table C, and which will not artificially increase (B) (i) the Actual EBITDA for such fiscal year divided by (ii) 125% of the Annual EBITDA Target for such fiscal year (the “Annual EBITDA Percentage”) and (2) each Stockholder shall receive an amount in cash equal to the product of (A) the Stockholder’s respective Maximum EBITDA Contingent Cash for such fiscal year, as set forth on Table C, and (B) the Annual EBITDA Percentage for such fiscal year; and any remainder of such Stockholder’s Maximum EBITDA Contingent Stock or decrease the annual EBIT amounts. EBIT Maximum EBITDA Contingent Cash shall be computed using forfeited. 3) If the same U.S. generally accepted accounting principles Actual EBITDA for a fiscal year is less than 70% of the Annual EBITDA Target for such fiscal year, then ("GAAP"1) used none of a Stockholder’s Maximum EBITDA Contingent Stock for such fiscal year shall vest and all such shares shall be forfeited and (2) no Stockholder shall receive any cash payment with respect to his or her Maximum EBITDA Contingent Cash for such fiscal year and such Maximum EBITDA Contingent Cash shall be forfeited. 4) The Annual EBITDA Target and the aggregate Maximum EBITDA Contingent Stock for all Stockholders for each fiscal year are set forth on Table A below. Each Stockholder’s Maximum EBITDA Contingent Stock and Maximum EBITDA Contingent Cash by Del in fiscal year are set forth on Table C below and are calculated by multiplying each of the preparation of its financial statements. For purposes of calculating EBIT hereunder, EBIT will be costed using the FIFO method. For purposes of this Section 2.4, EBIT Products shall include any products sold by Purchaser which are currently sold Maximum EBITDA Contingent Stock and Maximum EBITDA Contingent Cash for such fiscal year by the Gendex DivisionCompany ownership percentage of such Stockholder, products sold under the Distribution Agreement as set forth in Table D below. Annual Revenue Target (as herein defined$) $31,000,000 $48,000,000 $59,000,000 Maximum Revenue Contingent Stock (shares) 288,850.38 288,850.38 216,637.78 Maximum Revenue Contingent Cash ($) $833,333.33 $833,333.33 $625,000.00 Annual EBITDA Target ($) $4,700,000 $7,000,000 $10,000,000 Maximum EBITDA Contingent Stock (shares) 288,850.38 288,850.38 216,637.78 Maximum EBITDA Contingent Cash ($) $833,333.33 $833,333.33 $625,000.00 1 The numbers in these tables assume (1) $5.77 stock price (Trailing Closing Average Price), (2) $11M total contingent consideration ($4M in 2008, $4M in 2009 and any comparable or similar new products subsequently developed by Purchaser $3M in 2010), (hereinafter "EBIT Products"); provided3) cash/stock split = 1/3 and 2/3, however, that existing products transferred (4) Revenue/EBITA split = 1/2 and 1/2. Numbers in tables B and C don’t add due to Purchaser from its affiliates shall not be included in calculating EBIT so long as the revenues and related costs of any such products transferred to Purchaser shall be determined in a manner consistent with how Purchaser determines the revenues and related costs of its other productsrounding. Sales of EBIT Products to other business units of Del shall be recorded at the time of shipment by Purchaser to Del's other business units. The selling price of EBIT Products sold or transferred by Purchaser to Del's other business units shall be determined in accordance with third party pricing practices. Purchaser may include expenses for direct or indirect costs incurred by or on behalf of Purchaser but shall not include any general overhead or stewardship charges from Del or its affiliates, including Del's corporate overhead expenses.Jxxxxx Xxxxx-Xxxxxxxx 12,145.93 12,145.93 9,109.44 $35,041.00 $35,041.00 $26,280.75 Hejung Mxxxx Xxxx 50,769.97 50,769.97 38,077.48 $146,471.37 $146,471.37 $109,853.53 Jxxxxx Xxxx 9,109.44 9,109.44 6,832.08 $26,280.75 $26,280.75 $19,710.56 Kylie Matulick 32,368.89 32,368.89 24,276.67 $93,384.26 $93,384.26 $70,038.19 Exxx Xxxxx 50,769.97 50,769.97 38,077.48 $146,471.37 $146,471.37 $109,853.53 Rxxxxx Xxxx Xxxxxxx 50,769.97 50,769.97 38,077.48 $146,471.37 $146,471.37 $109,853.53 Sxxxxx Xxxxxxxx 11,903.01 11,903.01 8,927.26 $34,340.18 $34,340.18 $25,755.13 Mxxxx Xxxxx 50,769.97 50,769.97 38,077.48 $146,471.37 $146,471.37 $109,853.53 Cxxxxxxxxxx Xxxxxx 20,243.21 20,243.21 15,182.41 $58,401.66 $58,401.66 $43,801.25 Maximum Total 288,850.38 288,850.38 216,637.78 $833,333.33 $833,333.33 $625,000.00 Jxxxxx Xxxxx-Xxxxxxxx 12,145.93 12,145.93 9,109.44 $35,041.00 $35,041.00 $26,280.75 Hejung Mxxxx Xxxx 50,769.97 50,769.97 38,077.48 $146,471.37 $146,471.37 $109,853.53 Jxxxxx Xxxx 9,109.44 9,109.44 6,832.08 $26,280.75 $26,280.75 $19,710.56 Kylie Matulick 32,368.89 32,368.89 24,276.67 $93,384.26 $93,384.26 $70,038.19 Exxx Xxxxx 50,769.97 50,769.97 38,077.48 $146,471.37 $146,471.37 $109,853.53 Rxxxxx Xxxx Xxxxxxx 50,769.97 50,769.97 38,077.48 $146,471.37 $146,471.37 $109,853.53 Sxxxxx Xxxxxxxx 11,903.01 11,903.01 8,927.26 $34,340.18 $34,340.18 $25,755.13 Mxxxx Xxxxx 50,769.97 50,769.97 38,077.48 $146,471.37 $146,471.37 $109,853.53 Cxxxxxxxxxx Xxxxxx 20,243.21 20,243.21 15,182.41 $58,401.66 $58,401.66 $43,801.25 Maximum Total 288,850.38 288,850.38 216,637.78 $833,333.33 $833,333.33 $625,000.00 Jxxxxx Xxxxx-Xxxxxxxx 4.20% Hejung Mxxxx Xxxx 17.58% Jxxxxx Xxxx 3.15% Kylie Matulick 11.21% Exxx Xxxxx 17.58% Rxxxxx Xxxx Xxxxxxx 17.58% Sxxxxx Xxxxxxxx 4.12% Mxxxx Xxxxx 17.58% Cxxxxxxxxxx Xxxxxx 7.00%

Contingent Consideration. (ai) Purchaser further agreesABIOMED shall pay to the Impella Stockholders, as a contingent payment, an aggregate amount of up to US$16.75 million (the “Contingent Consideration”) in the event that certain milestones are achieved: (A) In the EBIT event that Impella’s 2.5 liter pump system is approved for sale in the U.S. by the FDA under the Premarket Approval process, the Premarket Notification process, or other administrative process of Purchaser exceeds $2,000,000 like effect, ABIOMED shall pay to the Impella Stockholders an additional aggregate amount of US$5,583,333; and (B) in either the event that Impella’s 5.0 liter pump system is approved for sale in the U.S. by the FDA under the Premarket Approval process, the Premarket Notification process, or other administrative process of like effect, ABIOMED shall pay to the Impella Stockholders an additional aggregate amount of US$5,583,333; and (iC) in the twelve month period immediately following event ABIOMED and its Affiliates and Subsidiaries have sold (other than to ABIOMED, its Affiliates or Subsidiaries of ABIOMED) at least 1,000 units of Impella’s Products worldwide after the Closing Date, but on or before December 31, 2007 (the “Third Milestone Date”), ABIOMED shall pay to the Impella Stockholders an additional aggregate amount of US$5,583,334, such sales of units to be calculated as of the end of each of ABIOMED’s fiscal quarters. Prior to December 31, 2007, ABIOMED’s Chief Executive Officer shall certify to the Stockholders’ Representative in writing no more than thirty days after the end of each ABIOMED fiscal quarter of the number of units of Impella’s Products that have been sold by ABIOMED and its subsidiaries since the Closing Date ("Year One") or (ii) as of the twelve month period immediately following Year One ("Year Two"), to pay to Seller the additional sum of One Million ($1,000,000) Dollars (the "Contingent Consideration"). The Contingent Consideration shall be paid by Purchaser to Seller not later than thirty (30) days following the delivery to Seller of Purchaser's financial statements for Year One or Year Two, as the case may be. For purposes of verifying Purchaser's calculation of EBIT during Year One and/or Year Two, Purchaser shall permit Seller or its authorized agents after reasonable prior written notice to review, at Seller's expense, Purchaser's books of account during normal business hours; provided that, if Seller's audit reveals that EBIT was miscalculated by Purchaser and underreported to Seller by five percent (5%) or more, then Seller's costs and expenses end of such audit shall be reimbursed by Purchaser within ten (10) days fiscal quarter, which number of submission from Seller to Purchaser of any invoices for such costs and expenses. (b) It is the intent of the parties to develop a method of calculating EBIT of the Purchaser which will be equitable to both parties and which will not artificially increase or decrease the annual EBIT amounts. EBIT shall be computed using the same U.S. generally accepted accounting principles ("GAAP") used by Del in the preparation of its financial statements. For purposes of calculating EBIT hereunder, EBIT will be costed using the FIFO method. For purposes of this Section 2.4, EBIT Products shall include any products sold by Purchaser which are currently sold by the Gendex Division, products sold under the Distribution Agreement (as herein defined), and any comparable or similar new products subsequently developed by Purchaser (hereinafter "EBIT Products"); provided, however, that existing products transferred to Purchaser from its affiliates shall not be included in calculating EBIT so long as the revenues and related costs of any such products transferred to Purchaser shall be determined in a manner consistent with how Purchaser determines the revenues and related costs of its other products. Sales of EBIT Products to other business units of Del shall be recorded at the time of shipment by Purchaser to Del's other business units. The selling price of EBIT Products sold or transferred by Purchaser to Del's other business units shall be determined in accordance with third party pricing practicesU.S. GAAP. Purchaser At any time prior to the Third Milestone Date, if ABIOMED has not notified the Stockholders’ Representative that it has sold at least 1,000 units of Impella’s Products, the Stockholders’ Representative shall have the right, upon reasonable prior notice to ABIOMED and at the Stockholders’ Representative’s expense, to have an independent accountant access the books, records and employees of ABIOMED and its Subsidiaries as relevant or necessary to audit the sales of Impella Products by ABIOMED and its subsidiaries through the end of the preceding ABIOMED fiscal quarter. As a condition to such audit, such independent accountant shall agree with ABIOMED not to disclose any confidential information of ABIOMED (other than its determination of the number of units sold, and its basis for determining this number, which may include expenses only be disclosed to the Stockholders’ Representative). If at any time the Stockholders’ Representative disagrees with any ABIOMED certification of units sold, the Stockholders’ Representative shall promptly notify ABIOMED in writing, and the parties shall attempt to resolve any such disagreement in accordance with Section 11.1; provided, however, if the Representatives do not agree within thirty (30) days on units sold, ABIOMED and the Stockholders’ Representative shall appoint an independent public accountant of recognized standing to resolve the matter, and share the cost of such accountant. (ii) The foregoing notwithstanding if the average price per share of ABIOMED Common Stock, determined in accordance with this clause, with respect to the date of achievement of any milestone is US$22 or more, no payment will be required with respect to such milestone. If such average price per share is between US$18 and US$22 on such date, the relevant milestone payment amount set forth above will be reduced so that it equals (x) the difference between US$22 and such average closing sale price divided by 4 multiplied by (y) such milestone payment amount. The average price per share for direct purposes of this clause will be the average of the daily volume weighted average price per share of ABIOMED Common Stock on the Nasdaq National Market System, based on trading between 9:30 a.m. and 4:00 p.m. Eastern Time, as reported by Bloomberg Financial L.P., on each of the twenty (20) trading days before and twenty (20) trading days after the date of achievement of the relevant milestone. During the two weeks after the date of the achievement of any milestone, ABIOMED shall, in good faith, not take, directly or indirect costs incurred by indirectly, any action intentionally designed to cause or result in stabilization or manipulation of the price of the ABIOMED Common Stock for the purpose of reducing the Contingent Consideration payable hereunder. (iii) At ABIOMED’s option any of the milestone payments described in Section 2.4(c)(i) above may be paid in either ABIOMED Common Stock or cash or a combination of both; provided, however, that if the aggregate amount of the milestone payments exceeds US$15 million, only US$15 million may be paid in ABIOMED Common Stock and any remaining amounts due must instead be paid in cash. In the event that ABIOMED elects to pay all or a portion of any milestone payment under Section 2.4(c)(i) in ABIOMED Common Stock, the value of such ABIOMED Common Stock shall be deemed to be the average price per share determined as of the date of achievement of the applicable milestone using the same method as provided in Section 2.4(c)(ii) above for purposes of such payment. The foregoing notwithstanding, under no circumstances will ABIOMED deliver or be obligated to deliver a number of shares of stock, whether under Sections 2.4(a), 2.4(b) or 2.4(c), that would require that ABIOMED’s stockholders would be or would have been required to approve this transaction under applicable Nasdaq rules or other securities laws. To the extent that ABIOMED chooses not to pay any Additional Consideration or Contingent Consideration in ABIOMED Common Stock under this Section 2.4, ABIOMED shall pay such consideration in cash pursuant to Sections 2.4(a)(ii) or 2.4(c)(iv), as the case may be. (iv) Within thirty (30) days following achievement of a milestone set forth in this Section 2.4(c), ABIOMED shall pay to the Stockholders’ Representative on behalf of Purchaser but each Impella Stockholder, each Impella Stockholder’s Pro Rata Share of the Contingent Consideration as set forth on Exhibit A. In the event that ABIOMED chooses to pay all or a portion of Contingent Consideration in cash, ABIOMED shall pay such portion of the Contingent Consideration by wire transfer with the written instructions set forth on Exhibit A. (v) Each of the parties hereto acknowledge and agree that it is their current desire and intention that each of the milestones set forth in Section 2.4(c)(i) be met by ABIOMED, its Affiliates and/or Subsidiaries after the Closing, and ABIOMED covenants and agrees that after the Closing, it shall use commercially reasonable efforts to achieve the milestones set forth in Section 2.4(c)(i) and will not include freeze or materially delay any general overhead of the projects related to such milestones without good cause or stewardship charges from Del or its affiliates, including Del's corporate overhead expensesreasonable business justification.

Contingent Consideration. (a) Purchaser further agreesIn addition to the Common Exchange Shares and Preferred Exchange Shares issuable pursuant to Sections 3.01 and 3.02, in Sterling shall issue to the event that the EBIT Accepting Common Shareholders up to 85,005 shares of Purchaser exceeds $2,000,000 in either of (i) the twelve month period immediately following the Closing Date ("Year One") or (ii) the twelve month period immediately following Year One ("Year Two"), to pay to Seller the additional sum of One Million ($1,000,000) Dollars Series A Preferred Stock (the "Contingent ConsiderationEarnout Shares"). The Contingent Consideration shall be paid by Purchaser ) in five separate issuances of up to Seller not later than thirty 17,001 Earnout Shares per issuance, each issuance being contingent upon ITI’s satisfaction of the criteria (30the "Earnout Criteria") days following the delivery to Seller of Purchaser's financial statements for Year One or Year Two, as the case may beset forth in this Section 3.03. For purposes of verifying Purchaser's calculation determining whether the Earnout Criteria has been satisfied and the number of EBIT during Year One and/or Year TwoEarnout Shares issuable, Purchaser the following shall permit Seller or its authorized agents after reasonable prior written notice to reviewapply: (a) For each calendar year beginning in 2007 and ending in 2011 (the "Earnout Period"), at Seller's expensea minimum level of earnings before interest, Purchaser's books taxes, depreciation and amortization (the "Minimum EBITDA") and a target level of account during normal business hours; provided thatearnings before interest, if Seller's audit reveals that EBIT was miscalculated by Purchaser taxes, depreciation and underreported to Seller by five percent amortization (5%the "Target EBITDA") or more, then Seller's costs and expenses of such audit shall be reimbursed by Purchaser within ten (10) days of submission from Seller to Purchaser of any invoices for such costs and expenses.ITI is established as follows: 2007 $ 200,000 $ 450,000 2008 400,000 700,000 2009 600,000 950,000 2010 800,000 1,200,000 2011 1,200,000 1,450,000 (b) It is Earnings before interest, taxes, depreciation and amortization ("EBITDA") of ITI will be computed for each calendar year during the intent Earnout Period based on the financial performance of the parties ITI Businesses, on a stand-alone basis, in accordance with GAAP applied consistently throughout the Earnout Period and consistent with the fiscal period immediately prior to develop a method of calculating EBIT of the Purchaser which will be equitable to both parties and which will not artificially increase or decrease the annual EBIT amounts. EBIT shall be computed using the same U.S. generally accepted accounting principles ("GAAP") used by Del in the preparation of its financial statementsEarnout Period. For purposes of calculating EBIT hereunderdetermining satisfaction of the Earnout Criteria, EBIT (1) EBITDA shall be computed on a calendar year basis, (2) Net Excess EBITDA shall be carried forward in computing EBITDA for the following year, and (3) EBITDA of the ITI Businesses will be costed using include EBITDA attributable to each of the FIFO methodITI Businesses and natural extensions of the ITI Businesses to new geographic markets and customers, subject to the limitations, if any, described on Schedule 1.19, but will exclude (a) EBITDA attributable to entry, on or after the Closing Date, into new product or services markets and acquisitions, on or after the Closing Date, of businesses or projects and (b) EBITDA attributable to the proposed sale of ITI’s Xxxx Xxxxx operations. For purposes of this Section 2.4computing EBITDA for any calendar year "Net Excess EBITDA" shall consist of the excess, EBIT Products shall include any products sold if any, of (x) the aggregate EBITDA for each preceding calendar year during the Earnout Period over (y) the aggregate Target EBITDA for each preceding calendar year during the Earnout Period. (c) Within fifteen calendar days following the release of earnings by Purchaser which are currently sold by Sterling, but not later than 120 days after the Gendex Divisionend of each calendar year during the Earnout Period, products sold under Sterling will determine EBITDA and the Distribution Agreement (as herein defined), number of Earnout Shares for the applicable year. The calculation of EBITDA and any comparable or similar new products subsequently developed by Purchaser (hereinafter "EBIT Products"); provided, however, that existing products transferred the number of Earnout Shares to Purchaser from its affiliates shall not be included in calculating EBIT so long as the revenues and related costs of any such products transferred to Purchaser issued shall be determined set out in a manner consistent with how Purchaser determines the revenues writing and related costs of its other products. Sales of EBIT Products to other business units of Del shall be recorded at the time of shipment approved by Purchaser to Del's other business units. The selling price of EBIT Products sold or transferred by Purchaser to Del's other business units shall be determined in accordance with third party pricing practices. Purchaser may include expenses for direct or indirect costs incurred by or Xxxxxx Xxxxxx, on behalf of Purchaser Sterling, and Xxx Xxxxxxx, on behalf of ITI. In the event Xx. Xxxxxx and Xx. Xxxxxxx are unable to agree on the calculation of EBITDA and the Earnout Shares to be issued, the calculation shall be submitted to Sterling’s independent public accounting firm and any determination by that firm will be binding. Not later than fifteen days after a final determination of EBITDA and the Earnout Shares to be issued for each calendar year during the Earnout Period, Sterling will issue Earnout Shares, as follows: (i) if EBITDA for the applicable year is less than the Minimum EBITDA for the year, no Earnout Shares will be issued; (ii) if EBITDA for the applicable year equals or exceed the Target EBITDA for the year, 17,001 Earnout Shares will be issued; and (iii) if EBITDA for the applicable year is more than the Minimum EBITDA but less than the Target EBITDA for the year, a number of Earnout Shares will be issued equal to (x) 17,001 shares, multiplied by (y) the percentage determining by dividing EBITDA by Target EBITDA. (d) In the event the Exchange is consummated but less than 100% of the common stock of ITI is delivered to Sterling, the number of Earnout Shares, in the aggregate and in yearly installments, shall not include any general overhead be reduced proportionately. (e) Each Accepting Common Shareholder having complied with Section 3.01 shall be entitled to receive a certificate or stewardship charges from Del or its affiliates, including Del's corporate overhead expensescertificates evidencing his proportionate interest in the Earnout Shares.

Contingent Consideration. (a) Purchaser further agreesUpon the last day of the Survival Period (or if such date is not a Business Day, the next Business Day), Acquiror shall, subject to Sections 1.16(b) and (c) pay to the Company Holders’ Agent (for payment to the Company Holders in accordance with this Section 1.16) in the event that the EBIT of Purchaser exceeds $2,000,000 in either of aggregate an amount equal to (i) the twelve month period immediately following the Closing Date ("Year One") or $840,000, plus (ii) the twelve month period immediately following Year One Positive True-Up Amount ("Year Two"if any), to pay to Seller minus (iii) the additional sum Negative True-Up Amount (if any), minus (iv) the amount of One Million any resolved Claims or Third Party Claims in favor of the Acquiror Indemnified Persons under ARTICLE VIII that have not been directly paid by the Company Holders, minus ($1,000,000v) Dollars the Outstanding Claim Reserve (as defined below) as of the "time of calculation (such amount, the “Initial Contingent Consideration"”), which Initial Contingent Consideration, if positive, shall be allocated among the Company Holders in proportion to each Company Holder’s Pro Rata Share. The For purposes hereof, “Outstanding Claim Reserve” means, as of the applicable date, all amounts claimed by Acquiror to be then owed to (or, if Acquiror has not then finally determined the amount that may be claimed, Acquiror’s good faith estimate of the maximum amount that may be claimed by Acquiror to be owed to) the Acquiror Indemnified Persons in respect of indemnity claims made by the Acquiror Indemnified Persons in accordance with ARTICLE VIII. If there is a positive Outstanding Claim Reserve amount as of the last day of the Survival Period, then, following payment of the Initial Contingent Consideration (if any) as set forth above, at such time as the Outstanding Claim Reserve is zero, the Initial Contingent Consideration shall be paid by Purchaser to Seller not later than thirty (30) days following the delivery to Seller of Purchaser's financial statements for Year One or Year Two, recalculated as the case may be. For purposes of verifying Purchaser's calculation of EBIT during Year One and/or Year Two, Purchaser shall permit Seller or its authorized agents after reasonable prior written notice to review, at Seller's expense, Purchaser's books of account during normal business hours; provided that, if Seller's audit reveals that EBIT was miscalculated by Purchaser and underreported to Seller by five percent (5%) or more, then Seller's costs and expenses of such audit shall be reimbursed by Purchaser within ten time (10such recalculated amount, the “Final Contingent Consideration”) days of submission from Seller and an amount equal to Purchaser of any invoices for such costs and expenses. the excess (bif any) It is the intent of the parties Final Contingent Consideration over the Initial Contingent Consideration shall, subject to develop a method of calculating EBIT of the Purchaser which will be equitable to both parties Sections 1.16(b) and which will not artificially increase or decrease the annual EBIT amounts. EBIT shall be computed using the same U.S. generally accepted accounting principles ("GAAP") used by Del in the preparation of its financial statements. For purposes of calculating EBIT hereunder, EBIT will be costed using the FIFO method. For purposes of this Section 2.4, EBIT Products shall include any products sold by Purchaser which are currently sold by the Gendex Division, products sold under the Distribution Agreement (as herein definedc), and any comparable or similar new products subsequently developed by Purchaser promptly be paid to the Company Holders’ Agent (hereinafter "EBIT Products"for payment to the Company Holders in proportion to each Company Holder’s Pro Rata Share); provided, however, that existing products transferred to Purchaser from its affiliates shall not be included in calculating EBIT so long as the revenues and related costs of any such products transferred to Purchaser shall be determined in a manner consistent with how Purchaser determines the revenues and related costs of its other products. Sales of EBIT Products to other business units of Del shall be recorded at the time of shipment by Purchaser to Del's other business units. The selling price of EBIT Products sold or transferred by Purchaser to Del's other business units shall be determined in accordance with third party pricing practices. Purchaser may include expenses for direct or indirect costs incurred by or on behalf of Purchaser but shall not include any general overhead or stewardship charges from Del or its affiliates, including Del's corporate overhead expenses.

Contingent Consideration. In further consideration of the purchase of sixty-five percent (65%) of the Assets and the Assets Related Business, Prime agrees to the following provisions related to the payment to VCC of certain additional consideration if the requirements of this Section are satisfied, and only in accordance with the provisions below. Any amounts payable pursuant to this Section are hereinafter referred to as "Contingent Consideration" and are provided in addition to payment of the Cash Purchase Price pursuant to Section 1.1. No payment of any portion of the Cash Purchase Price shall reduce amounts payable under this Section. (a) Purchaser further agrees, in Within sixty days of each of the event that the EBIT first three annual anniversaries of Purchaser exceeds $2,000,000 in either of (i) the twelve month period immediately following the Closing Date (each, a "Year OneCalculation Date"), Newco shall calculate the Actual Net Income (as hereinafter defined) or for Newco for the twelve consecutive calendar months ending on the respective Calculation Date (ii) the each such twelve month period immediately is hereinafter referred to as a "Calculation Period). As used herein, "Actual Net Income" for any Calculation Period shall mean the net income for Newco during that Calculation Period, calculated using the same methodology and principles reflected in the calculation of "Base Net Income" shown on Schedule 4.6 attached hereto. The parties acknowledge and agree that the manner of calculation set forth on Schedule 4.6 attached hereto reflects the agreed upon means of calculating the Base Net Income reflected therein, as well as the Actual Net Income for any Calculation Period (subject, however, to exclusions/additions described below in subsection (d)). Within each such sixty day period, Prime shall deliver to Couch, via certified or registered U.S. Mail, a statement (the "Calculation Statement") showing calculation of the Actual Net Income for the respective Calculation Period and the basis on which it was calculated in reasonable detail. If Couch shall fail to receive a Calculation Statement within such sixty-day period, then Couch shall promptly notify Prime in writing that the Calculation Statement has not been received, and Prime shall have an additional five days following Year One its receipt of such notice from Couch, within which Prime may deliver the respective Calculation Statement without having been in default under this subsection (a). If Prime fails to deliver the respective Calculation Statement within such additional five-day period, and payment of the Contingent Consideration would have been otherwise required for the respective Calculation Period, Prime agrees to pay interest at PMSI's overnight funds investment rate on the amount of the Contingent Consideration, charged from the first day following such addition five-day period until the day on which the respective Calculation Statement is delivered. Couch shall have thirty days following his receipt of a Calculation Statement during which Newco and Prime agree to provide to Couch reasonable access to Newco's books and records. If Couch shall fail to deliver an Objection Notice (as hereinafter defined) within such thirty-day period, then such failure shall constitute Couch's acceptance of the respective Calculation Statement, which shall thereupon become conclusive and binding on all parties hereto, and shall not be subject to further review, challenge, or adjustment. During such thirty-day period, Couch may deliver to Prime, via certified or registered U.S. Mail, a written notice of objection to the respective Calculation Statement (an "Year TwoObjection Notice"), to pay to Seller which Objection Notice shall set forth in reasonable detail Couch's calculation of the additional sum of One Million ($1,000,000) Dollars (the "Contingent Consideration"). The Contingent Consideration calculated therein, and Couch's basis for objection, in which case the parties shall be paid by Purchaser meet and in good faith attempt to Seller not later than resolve any disagreement within thirty (30) days following after Prime's receipt of the delivery Objection Notice. If the parties are unable to Seller resolve such disagreement within such time period, the disagreement shall be referred to a "Big Five" accounting firm selected by mutual agreement of Purchaser's financial statements Couch and Prime, or if the parties cannot agree on such selection, then a "Big Five" accounting firm selected by lot, excluding those that have provided services to Couch or Prime within the preceding twenty-four months (the "Settlement Accountants"). The Settlement Accountants shall be directed to use their best efforts to reach a determination of the correct Actual Net Income for Year One or Year Twothe respective Calculation Period within forty-five days after such referral, as and their determination shall be final and binding on the case may be. For purposes of verifying Purchaser's calculation of EBIT during Year One and/or Year Twoparties hereto, Purchaser and shall permit Seller or its authorized agents after reasonable prior written notice not be subject to further review, at Seller's expense, Purchaser's books of account during normal business hours; provided that, if Seller's audit reveals that EBIT was miscalculated by Purchaser and underreported to Seller by five percent (5%) challenge or more, then Seller's adjustment. The costs and expenses of such audit the services of the Settlement Accountants (the "Audit Costs") shall be reimbursed allocated to and borne by Purchaser within ten (10) days Prime if the Contingent Consideration is payable based on the Actual Net Income calculation of submission from Seller to Purchaser the Settlement Accountants, or Couch if the Contingent Consideration is not payable based on the Actual Net Income calculation of any invoices for such costs and expensesthe Settlement Accountants. (b) It If the Actual Net Income for any Calculation Period finally determined pursuant to subsection (a) is equal to or greater than the intent corresponding "Target Amount" set forth below, Prime shall in each instance, within five business days of the final determination of that Actual Net Income, pay in cash to VCC the amount of $200,000: Calculation Period Target Amount If Prime fails to timely pay any amount required to be paid by Prime pursuant to this subsection (b), then Prime agrees to pay interest at the rate of 10% per annum on the amount required to have been paid, charged from the last date on which such payment could have been timely made until the date on which such payment is actually paid. (c) The parties agree that each calculation of Actual Net Income and related payment of Contingent Consideration (if required) shall be made independent of other calculations of Actual Net Income. For example, and solely for purposes of illustration, if the finally determined Actual Net Income for the Calculation Period beginning on September 1, 2001 and ending on August 31, 2002 amounted to develop a method 120% of calculating EBIT Base Net Income, and the finally determined Actual Net Income for the Calculation Period beginning on September 1, 2002 and ending on August 31, 2003 amounted to 160% of Base Net Income, Prime would not be obligated to pay any amount in respect of the Purchaser which will Calculation Period ended August 31, 2002, but would be equitable obligated to both pay $200,000 to VCC in respect of the Calculation Period ended August 31, 2003. The parties agree that Prime shall never be obligated to pay more than $600,000 pursuant to this Section (excluding interest, if any, pursuant to subsection (a) related to the untimely delivery of a Calculation Statement). (d) The parties agree that, notwithstanding any provision of this Agreement to the contrary, the revenues, income, costs, and which will not artificially increase expenses (including, without limitation, startup and transaction costs, legal and accounting costs and fees, and applicable financing costs) resulting from or decrease attributable to the annual EBIT amounts. EBIT acquisition, development and/or operation of any new locations by Newco or Newco's subsidiaries shall be computed using the same U.S. generally accepted accounting principles ("GAAP") used by Del included in the preparation calculation of its financial statementsthe Actual Net Income for each Calculation Period pursuant to subsection (a). For purposes of calculating EBIT hereunder, EBIT will be costed using the FIFO method. For purposes The provisions of this Section 2.4, EBIT Products shall include any products sold by Purchaser which are currently sold by the Gendex Division, products sold under the Distribution Agreement subsection (as herein defined), and any comparable or similar new products subsequently developed by Purchaser (hereinafter "EBIT Products"); provided, however, that existing products transferred to Purchaser from its affiliates d) shall not be included in calculating EBIT so long as the revenues and related costs of construed to require any such products transferred to Purchaser shall be determined in a manner consistent with how Purchaser determines the revenues and related costs of its other products. Sales of EBIT Products to other business units of Del shall be recorded at the time of shipment by Purchaser to Del's other business units. The selling price of EBIT Products sold or transferred by Purchaser to Del's other business units shall be determined in accordance with third party pricing practices. Purchaser may include expenses for direct or indirect costs incurred by or on behalf of Purchaser but shall not include any general overhead or stewardship charges from Del or its affiliatesparty, including Del's corporate overhead expensesNewco, to develop or acquire any new location.

Contingent Consideration. (a) Purchaser further agreesSubject to paragraph (b) of this Section 3.1A, in addition to the shares of FAC Common Stock to be issued in exchange for shares of Charter Common Stock pursuant to the provisions of 5 Section 3.1 (c) of this Agreement, each Charter Stockholder shall be entitled to receive an additional number of shares of FAC Common Stock, rounded down to the nearest number of whole shares, equal to the product of the number of shares of Charter Common Stock held by such Charter Stockholder immediately prior to the Effective Time and the Per Share Recovery Ratio. Shares of FAC Common Stock, if any, described in this Section 3.1A are hereinafter referred to as "Contingent Shares." In the event that the EBIT circumstances described in paragraph (b) of Purchaser exceeds $2,000,000 this Section 3.1A arise, then each Charter Stockholder shall be entitled to receive the consideration described in either of such paragraph (i) the twelve month period immediately following the Closing Date ("Year One") or (ii) the twelve month period immediately following Year One ("Year Two"b), to pay to Seller the additional sum of One Million ($1,000,000) Dollars (the "Contingent Consideration"). The Contingent Consideration shall be paid by Purchaser to Seller not later than thirty (30) days following the delivery to Seller of Purchaser's financial statements for Year One or Year Twoif any, as the case may be. For purposes of verifying Purchaser's calculation of EBIT during Year One and/or Year Two, Purchaser shall permit Seller or its authorized agents after reasonable prior written notice to review, at Seller's expense, Purchaser's books of account during normal business hours; provided that, if Seller's audit reveals that EBIT was miscalculated by Purchaser and underreported to Seller by five percent (5%) or more, then Seller's costs and expenses of such audit shall be reimbursed by Purchaser within ten (10) days of submission from Seller to Purchaser in lieu of any invoices for such costs and expensesFAC Common Stock. (b) It In the event that (i) a consolidation, merger or acquisition of FAC with, into or by another corporation ("Acquiror"), other than a transaction pursuant to which FAC is the intent surviving entity and which does not result in a reclassification of the parties outstanding shares of FAC Common Stock into shares of other stock, cash or other securities or property has been consummated prior to develop a method of calculating EBIT the fifth anniversary of the Purchaser which will be equitable to both parties Effective Time, and which will not artificially increase or decrease (ii) the annual EBIT amounts. EBIT last payment constituting Goodwill Litigation Recovery is received after the consummation of a transaction described in (i) above but before the fifth anniversary of the Effective Time, then each Charter Stockholder shall be computed using entitled to receive, at the same U.S. generally accepted accounting principles election of Acquiror, either cash or shares of the Acquiror's capital stock, or a combination of cash and shares of the Acquiror's capital stock, having a value equaling the product of (A) fifty percent (50%) of Net Goodwill Litigation Recovery divided by the number of shares of Charter Common Stock issued and outstanding immediately prior to the Effective Time and (B) the number of shares of Charter Common Stock held by such Charter Stockholder immediately prior to the Effective Time ("GAAP") used by Del in the preparation of its financial statements. For purposes of calculating EBIT hereunder, EBIT will be costed using the FIFO method. For purposes of this Section 2.4, EBIT Products shall include any products sold by Purchaser which are currently sold by the Gendex Division, products sold under the Distribution Agreement (as herein defined), and any comparable or similar new products subsequently developed by Purchaser (hereinafter "EBIT ProductsAcquiror Consideration"); provided, however, that existing products transferred to Purchaser from its affiliates shall not be included in calculating EBIT so long as the revenues and related costs of any such products transferred to Purchaser no Acquiror Consideration shall be determined in a manner consistent with how Purchaser determines distributable to the revenues Charter Stockholders unless the aggregate value of such Acquiror Consideration would equal or exceed the product of Two Dollars ($2.00) and related costs the number of its other products. Sales shares of EBIT Products Charter Common Stock issued and outstanding immediately prior to other business units of Del shall be recorded at the time of shipment by Purchaser to Del's other business units. The selling price of EBIT Products sold or transferred by Purchaser to Del's other business units shall be determined in accordance with third party pricing practices. Purchaser may include expenses for direct or indirect costs incurred by or on behalf of Purchaser but shall not include any general overhead or stewardship charges from Del or its affiliates, including Del's corporate overhead expenses.6