Common use of Earn-Out Payment Clause in Contracts

Earn-Out Payment. (a) (i) In the event that on or before November 30, 2000, each of the performance statistics set forth on Schedule 2.4(a)(i) (the "Initial Performance Statistics") for all webpages on Webjump (the "Relevant Webpages") has been achieved (each as determined in the manner set forth on such Schedule) for a period of three consecutive calendar months, Parent shall deliver to Seller, in the manner set forth below, the Initial Earn-Out Payment. The "Initial Earn-Out Payment" shall consist of such number of newly issued shares of Parent Common Stock as are equivalent to the quotient of (1) $6,250,000 (the "Initial Cash Amount") less the amount of any Losses (as defined in Section 8.2(a)) in excess of $50,000 claimed by the Parent Indemnified Group (as defined in Section 8.3(a)) prior to the Initial Earn-Out Payment Date (as defined below) (such Losses, the "Initial Pre-Earnout Losses", and, together with the Second Pre-Earnout Losses, as defined below, the "Pre-Earnout Losses") divided by (2) the Reference Share Price (as defined below); provided that in the event the Initial Earn-Out Payment (calculated without deducting any amount of Initial Pre-Earnout Losses from the Initial Cash Amount) exceeds $17,500,000 in value (determined by multiplying the number of shares issuable in the Initial Earn-Out Payment by the average closing price of Parent Common Stock as reported on the Nasdaq National Market for the five trading days immediately preceding the Initial Earn-Out Payment Date, if any (the "Initial Five Day Average")), the number of shares delivered in the Initial Earn Out Payment shall be reduced to equal the quotient of $17,500,000 (less any Initial Pre-Earnout Losses being deducted) divided by the Five Day Average. The Initial Earn-Out Payment shall be made within 30 days following the date that the Seller has received written verification (in the manner set forth on Schedule 2.4) that the Initial Performance Statistics set forth on such Schedule have been achieved (such date, the "Initial Earn-Out Payment Date").

Earn-Out Payment. (a) (i) The Parties intend for Seller and Buyer to operate and manage the Business after the Closing Date pursuant to the Operating Plan in substantially the form attached hereto as Exhibit J. In the event that on or before November 30of any conflict between the Operating Plan and this Agreement, 2000the terms of this Agreement shall control. Subject to the terms of this Section 2.6, each Seller will be entitled to receive, as an earn out payment, an amount not to exceed Four Million Dollars ($4,000,000) in ***Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission. cash (the “Earn Out Cash”) and 76,300 shares of in InPhonic Common Stock having a value of Two Million Dollars ($2,000,000) as of the performance statistics set forth Effective Date, (which number of shares was obtained by dividing (a) $2,000,000 by (b) the average closing market price for InPhonic’s Common Stock on Schedule 2.4(a)(ithe NASDAQ Stock Market (excluding after-hours trading) for the ten (10) day trading period preceding the Effective Date (the "Initial Performance Statistics") for all webpages “Earn Out Stock”), (together, the Earn Out Cash and Earn Out Stock, the “Earn Out Payment”). In accordance with Section 2.6(b), the Earn Out Payment will be received by Seller in four quarterly installments over the course of the twelve month period beginning on Webjump the Effective Date and ending on December 31, 2005 (the "Relevant Webpages"“Measuring Period”) has been achieved (each as determined in based upon the manner set forth on such Schedule) for a period of three consecutive calendar months, Parent shall deliver to Seller, in the manner set forth below, the Initial Earn-Out Payment. The "Initial Earn-Out Payment" shall consist of such number of newly issued shares of Parent Common Stock as are equivalent to the quotient of (1) $6,250,000 (the "Initial Cash Amount") less the amount of any Losses Activations (as defined in Section 8.2(a)herein below) in excess of $50,000 claimed achieved by Seller during the Parent Indemnified Group (as defined in Section 8.3(a)) prior to Measuring Period, provided that upon Seller earning the Initial Earn-Earn Out Payment Date (as defined below) (such Lossesor any portion thereof, the "Initial Pre-Earnout Losses", and, together with portion of the Second Pre-Earnout Losses, as defined below, the "Pre-Earnout Losses") divided by (2) the Reference Share Price (as defined below); provided that in the event the Initial Earn-Out Payment (calculated without deducting any amount of Initial Pre-Earnout Losses from the Initial Cash Amount) exceeds $17,500,000 in value (determined by multiplying the number of shares issuable in the Initial Earn-Out Payment by the average closing price of Parent Common Stock as reported on the Nasdaq National Market for the five trading days immediately preceding the Initial Earn-Out Payment Date, if any (the "Initial Five Day Average")), the number of shares delivered in the Initial Earn Out Payment shall be reduced to equal deemed “Held In Trust” for the quotient Benefit of $17,500,000 (less A1 Wireless USA, Inc.” while in the custody of the Escrow Agent, provided that there are not any Initial Pre-Earnout Losses being deducted) divided indemnity claims by Buyer or the Five Day Average. The Initial Earn-earned portion of the Earn Out Payment exceed the Indemnification Cap. For purposes of determining whether Seller is entitled to any Earn Out Payment during any Quarterly Measuring Period, on or before the tenth day following the end of each Quarterly Measuring Period, Buyer shall cause to be prepared and delivered to Seller a quarterly statement setting forth the actual number of Activations achieved (i) during the respective Quarterly Measuring Period and (ii) for each month of the Quarterly Measuring Period (each, a “Quarterly Activation Statement”). Each Quarterly Activation Statement will also set forth the amount, if any, of the Earn Out Payment due to Seller for such Quarterly Measuring Period, and the basis for Buyer’s calculation. If, within ten (10) days following receipt of any Quarterly Activation Statement, Seller has not given Buyer written notice of its objection to such Quarterly Activation Statement (which objection notice must contain a reasonable statement of the basis of Seller’s objection) (the “Notice of Objection”), then such Quarterly Activation Statement shall be made deemed accepted by Seller and will be used to determine whether Seller is entitled to any Earn Out Payment for that Quarterly Measuring Period. If Seller provides the Notice of Objection to Buyer, Seller and Buyer will have fifteen (15) days to resolve the dispute in good faith among themselves. If Seller and Buyer have not resolved their dispute within 30 days following such fifteen (15) day period, then Seller and Buyer shall resolve their dispute in accordance with the date that Arbitration Procedures set forth in Section 2.6(f) below. During the 15-day period Seller has received written verification (shall have the right, and Buyer shall give access during this period, to inspect Buyer’s books and records used in connection with Buyer’s determination of the amounts due to Seller set forth in the manner set forth on Schedule 2.4) that the Initial Performance Statistics set forth on such Schedule have been achieved (such date, the "Initial Earn-Out Payment Date")Quarterly Activiation Statement.

Earn-Out Payment. (a) Subject to the terms of this Section 2.6, Seller shall be eligible to receive an earn-out payment described in Section 2.6(b) if the Company achieves the statutory earnings target set forth below. Any such earn-out payment shall be calculated as of the Earn-Out End Date and payable in accordance with this Section 2.6. (b) Buyer shall provide Seller written notice of Buyer’s calculation of the following amount (the “Earn-Out Payment”) within fifteen (15) days following the date on which the Company’s audited annual statutory financial statement for the calendar year ended on December 31, 2023 is filed with the Insurance Regulator in the Company’s domiciliary jurisdiction: (i) In if the event Company Statutory Earnings do not exceed $15,250,000, zero; (ii) if the Company Statutory Earnings exceed $15,250,000 but are less than $16,500,000, an amount equal to the product of (y) the Prorated Portion and (z) $12,500,000; and (iii) if the Company Statutory Earnings equal or exceed $16,500,000, $12,500,000. The Earn-Out Payment, if any, will be payable to Seller by wire transfer of immediately available funds to bank account designated by Seller no later than the fifth (5th) Business Day following the notice delivered by Buyer pursuant to this Section 2.6(b). (c) Notwithstanding anything herein to the contrary, to the extent that Buyer is entitled to payment of Indemnifiable Losses under Article IX, on or before November 30prior to the Earn-Out Payment date, 2000, each Buyer may deduct the amount of such Indemnifiable Losses from the performance statistics set forth on Schedule 2.4(a)(i) (Earn-Out Payment payable by Buyer to Seller up to the "Initial Performance Statistics") for all webpages on Webjump (the "Relevant Webpages") has been achieved (each as determined in the manner set forth on such Schedule) for a period of three consecutive calendar months, Parent shall deliver to Seller, in the manner set forth below, the Initial Earn-Out Payment. The "Initial (d) Buyer shall provide its documentation in support of its calculation of the Earn-Out Payment to the Seller at the time of its notice to the Seller of its calculation delivered under Section 2.6(b), and the Seller shall have thirty (30) days from the date of receipt of such Earn-Out Payment or such notice, as the case may be, to deliver written notice of its objections to the calculation of the Earn-Out Payment" shall consist of such number of newly issued shares of Parent Common Stock as are equivalent to , specifying in reasonable detail the quotient of (1) $6,250,000 (the "Initial Cash Amount") less the amount of any Losses (as defined in Section 8.2(a)) in excess of $50,000 claimed by the Parent Indemnified Group (as defined in Section 8.3(a)) prior to the Initial Earn-Out Payment Date (as defined below) (such Losses, the "Initial Pre-Earnout Losses", and, together with the Second Pre-Earnout Losses, as defined below, the "Pre-Earnout Losses") divided by (2) the Reference Share Price (as defined below); provided that in the event the Initial Earn-Out Payment (calculated without deducting any amount of Initial Pre-Earnout Losses from the Initial Cash Amount) exceeds $17,500,000 in value (determined by multiplying the number of shares issuable in the Initial Earn-Out Payment by the average closing price of Parent Common Stock as reported on the Nasdaq National Market basis for the five trading days immediately preceding objections. If Seller does not timely object, Buyer’s calculation of the Initial Earn-Out Payment Date, if any (the "Initial Five Day Average")), the number of shares delivered in the Initial Earn Out Payment shall be reduced to equal the quotient of $17,500,000 (less any Initial Pre-Earnout Losses being deducted) divided by the Five Day Average. The Initial Earn-Out Payment shall be made within 30 days following the date that binding and conclusive. If the Seller has received written verification (in the manner set forth objects on Schedule 2.4) that the Initial Performance Statistics set forth on such Schedule have been achieved (such datea timely basis, the "Initial calculation of the Earn-Out Payment Date").shall not be binding and conclusive, and Buyer and the Seller shall negotiate in good faith to resolve the Sellers’ objections. If Buyer and Seller resolve such objections, the amount they

Earn-Out Payment. (a) (i) In the event that on or before November 30, 2000, each of the performance statistics set forth on Schedule 2.4(a)(i) Seller shall be entitled to receive a payment (the "Initial Performance Statistics") for all webpages on Webjump (the "Relevant Webpages") has been achieved (each as determined in the manner set forth on such Schedule) for a period of three consecutive calendar months, Parent shall deliver to Seller, in the manner set forth below, the Initial “Earn-Out Payment. The "Initial ”), payable in cash following the Earn-Out Payment" shall consist of such number of newly issued shares of Parent Common Stock as are equivalent to the quotient of (1) $6,250,000 (the "Initial Cash Amount") less the amount of any Losses (as defined in Section 8.2(a)) in excess of $50,000 claimed by the Parent Indemnified Group (as defined in Section 8.3(a)) prior to the Initial Earn-Out Payment Date (as defined below) (such Losses, the "Initial Pre-Earnout Losses", and, together with the Second Pre-Earnout Losses, as defined below, the "Pre-Earnout Losses") divided by (2) the Reference Share Price (as defined below); provided that in the event the Initial Earn-Out Payment (calculated without deducting any amount of Initial Pre-Earnout Losses from the Initial Cash Amount) exceeds $17,500,000 in value (determined by multiplying the number of shares issuable in the Initial Earn-Out Payment by the average closing price of Parent Common Stock as reported on the Nasdaq National Market for the five trading days immediately preceding the Initial Earn-Out Payment End Date, if any to be determined and paid in accordance with this Section 1.9 and the principles and requirements of Section 1.9 (a) of the "Initial Five Day Average")), the number of shares delivered in the Initial Earn Out Payment shall be reduced to equal the quotient of $17,500,000 (less any Initial Pre-Earnout Losses being deducted) divided by the Five Day AverageSeller Disclosure Schedule. The Initial Earn-Out Payment shall be made within 30 days following $650,000, in the date that event the organic CAGR in Adjusted Gross Profit from the twelve (12) month period ended on December 31, 2019 through the Earn-Out Date (the “Earn-Out Period”) attributed to the Acquired Business and any Additional Assets is at least ten percent (10%)(the “Earn-Out Threshold”), as illustrated in Section 1.9(a) of the Seller has received written verification (in the manner set forth on Schedule 2.4) that the Initial Performance Statistics set forth on such Schedule have been achieved (such date, the "Initial Disclosure Schedule. The Earn-Out Payment shall increase in accordance with Section 1.9(a) of the Seller Disclosure Schedule, to the extent the organic CAGR in Adjusted Gross Profit attributed to the Acquired Business and any Additional Assets exceeds the Earn-Out Threshold but is fifteen percent (15%) or less, and shall subsequently increase thereafter in accordance with Section 1.9(a) of the Seller Disclosure Schedule, to the extent the organic CAGR in Adjusted Gross Profit attributed to the Acquired Business and any Additional Assets exceeds fifteen percent (15%) but is twenty percent (20%) or less; provided, that the Earn-Out Payment shall in no event exceed $2,250,000 (the “Maximum Earnout”); and provided, further that the Shareholder remains employed by the Buyer through the Earn-Out End Date pursuant to the terms of the Employment Agreement (the “Employment Condition”). Notwithstanding anything set forth herein to the contrary, if the Shareholder is terminated by Buyer upon Disability, Death or Without Cause or if Shareholder terminates his employment for Good Reason (each as defined in the Employment Agreement) during the Initial Term (as defined in the Employment Agreement), then the Employment Condition shall be disregarded and Shareholder shall be entitled to receive a pro-rated Earn-Out Payment, if any, earned in accordance with the provisions of this Section 1.9; it being understood that any Earn-Out Payment shall be determined based on unaudited numbers to the extent any year-end audit is not complete at the time of calculation. The Buyer and Parent shall use commercially reasonable and good faith efforts to achieve the Maximum Earnout for the benefit of Buyer and Seller. In the event of the occurrence of a change in the ownership or control of the Business following the Closing Date but prior to the Earn-Out End Date", the Buyer shall use commercially reasonable and good faith efforts to achieve the Earn-Out Payment (to the maximum extent thereof). Buyer agrees (i) to act in good faith at all times during the Earn-Out Period; (ii) to not fail to take any action that would be required by reasonable, skillful, prudent, and diligent business persons engaged in the independent operation of a business similar to the Business of Seller; and (iii) to allocate adequate resources to the achievement of the Earn-Out Threshold.

Earn-Out Payment. (a) The Shareholders shall be entitled to receive a payment (i) In the event that on or before November 30, 2000, each of the performance statistics set forth on Schedule 2.4(a)(i) (the "Initial Performance Statistics") for all webpages on Webjump (the "Relevant Webpages") has been achieved (each as determined in the manner set forth on such Schedule) for a period of three consecutive calendar months, Parent shall deliver to Seller, in the manner set forth below, the Initial an “Earn-Out Payment. The "Initial ”), payable in cash following the end of the applicable Earn-Out Payment" shall consist Period, to be determined and paid in accordance with this Section 1.10 and the principles and requirements of such number Section 1.9(a) of newly issued shares the Seller Disclosure Schedule. In the event the Acquired Business achieves 100% of Parent Common Stock as are equivalent to the quotient of Gross Profit Target for the twelve (112) $6,250,000 month period ending on October 31, 2024 (the "Initial Cash Amount") less the amount of any Losses (as defined in Section 8.2(a)) in excess of $50,000 claimed by the Parent Indemnified Group (as defined in Section 8.3(a)) prior to the Initial “First Earn-Out Payment Date (as defined below) (such Losses, the "Initial Pre-Earnout Losses", and, together with the Second Pre-Earnout Losses, as defined below, the "Pre-Earnout Losses") divided by (2) the Reference Share Price (as defined below); provided that in the event the Initial Earn-Out Payment (calculated without deducting any amount of Initial Pre-Earnout Losses from the Initial Cash Amount) exceeds $17,500,000 in value (determined by multiplying the number of shares issuable in the Initial Earn-Out Payment by the average closing price of Parent Common Stock as reported on the Nasdaq National Market for the five trading days immediately preceding the Initial Earn-Out Payment Date, if any (the "Initial Five Day Average")Period”), the number of shares delivered in the Initial Earn Out Payment shall be reduced to equal the quotient of $17,500,000 (less any Initial Pre-Earnout Losses being deducted) divided by the Five Day Average. The Initial Earn-Out Payment shall be made within 30 days following $250,000. In the date that event the Seller has received written verification Acquired Business achieves 100% of the Gross Profit Target for the twelve (in 12) month period ending on October 31, 2025 (the manner set forth on Schedule 2.4) that “Second Earn-Out Period” and together with the Initial Performance Statistics set forth on such Schedule have been achieved (such dateFirst Earn-Out Period, an “Earn-Out Period”), the "Initial Earn-Out Payment Date"shall be an additional $250,000. In order for the Shareholders to be eligible to receive an Earn-Out Payment, the Acquired Business must achieve at least 80% of the Gross Profit Target during a given Earn-Out Period (the “Earn-Out Threshold”), as illustrated in Section 1.9(a) of the Seller Disclosure Schedule. Each Earn-Out Payment shall be structured on a proportionate, linear scale. As further illustrated in Section 1.9(a) of the Seller Disclosure Schedule, the minimum payment shall be earned upon achieving the Earn-Out Threshold and shall increase to the extent achievement of the Gross Profit Target exceeds the Earn-Out Threshold but is below 100% of the Gross Profit Target; provided, that the total Earn-Out Payments under this Agreement shall in no event exceed $500,000 (the “Maximum Earnout”). The Buyer shall use commercially reasonable and good faith efforts to achieve the Maximum Earnout for the benefit of Buyer and the Shareholders. Buyer agrees (i) to act in good faith at all times during the Earn-Out Periods; (ii) to not fail to take any action that would be required by reasonable, skillful, prudent, and diligent business persons engaged in the independent operation of a business similar to the Business of Seller; and (iii) to allocate adequate resources to the achievement of the Earn-Out Threshold.

Earn-Out Payment. (a) Seller shall be entitled to receive a payment (i) In the event that on or before November 30, 2000, each of the performance statistics set forth on Schedule 2.4(a)(i) (the "Initial Performance Statistics") for all webpages on Webjump (the "Relevant Webpages") has been achieved (each as determined in the manner set forth on such Schedule) for a period of three consecutive calendar months, Parent shall deliver to Seller, in the manner set forth below, the Initial an “Earn-Out Payment. The "Initial ”), payable following the end of the applicable Earn-Out Payment" shall consist Period, to be determined in accordance with this Section 1.9 and the principles and requirements of such number Section 1.9(a) of newly issued shares the Seller Disclosure Schedule and paid as follows: (i) Fifty percent (50%) of Parent Common Stock as are equivalent to the quotient of (1) $6,250,000 (the "Initial Cash Amount") less the amount of any Losses (as defined in Section 8.2(a)) in excess of $50,000 claimed by the Parent Indemnified Group (as defined in Section 8.3(a)) prior to the Initial Earn-Out Payment Date (as defined below) (such Losses, the "Initial Pre-Earnout Losses", and, together with the Second Pre-Earnout Losses, as defined below, the "Pre-Earnout Losses") divided by (2) the Reference Share Price (as defined below); provided that in the event the Initial Earn-Out Payment (calculated without deducting any amount of Initial Pre-Earnout Losses from the Initial Cash Amount) exceeds $17,500,000 in value (determined by multiplying the number of shares issuable in the Initial Earn-Out Payment by the average closing price of Parent Common Stock as reported on the Nasdaq National Market for the five trading days immediately preceding the Initial Earn-Out Payment Date, if any (the "Initial Five Day Average")), the number of shares delivered in the Initial Earn Out Payment shall be reduced to equal the quotient of $17,500,000 (less any Initial Pre-Earnout Losses being deducted) divided by the Five Day Average. The Initial Earn-Out Payment shall be made within 30 days following paid in cash (the date that “Cash Portion”); and (ii) Fifty percent (50%) of the Seller has received written verification (in the manner set forth on Schedule 2.4) that the Initial Performance Statistics set forth on such Schedule have been achieved (such date, the "Initial Earn-Out Payment Date"shall be paid in shares of the Company’s 10% Series A Cumulative Preferred Stock (the “Stock Portion”), with such number of shares to be computed based on a per share price equal to the volume weighted average price of the Company’s 10% Series A Cumulative Preferred Stock on the Nasdaq Global Market during the thirty (30) consecutive trading days ending on the trading day prior to the applicable payment date, rounded up to the nearest whole share. (b) In the event the Acquired Business achieves 100% of the Adjusted EBITDA Target for the twelve (12) month period ending on May 17, 2025 (the “First Earn-Out Period”), the Earn-Out Payment shall be $1,500,000. In the event the Acquired Business achieves 100% of the Adjusted EBITDA Target for the twelve (12) month period ending on May 17, 2026 (the “Second Earn-Out Period” and together with the First Earn-Out Period, each an “Earn-Out Period”), the Earn-Out Payment shall be an additional $1,500,000. In order for Seller to be eligible to receive an Earn-Out Payment, the Acquired Business must achieve at least 80% of the Adjusted EBITDA Target during a given Earn-Out Period (the “Earn-Out Threshold”), as illustrated in Section 1.9(a) of the Seller Disclosure Schedule. Each Earn-Out Payment shall be structured on 7 a proportionate, linear scale. As further illustrated in Section 1.9(a) of the Seller Disclosure Schedule, the minimum payment shall be earned upon achieving the Earn-Out Threshold and shall increase to the extent achievement of the Adjusted EBITDA Target exceeds the Earn-Out Threshold but is below 120% of the Adjusted EBITDA Target; provided, that the total Earn-Out Payments under this Agreement shall in no event exceed $4,140,000 (the “Maximum Earnout”). Buyer shall use commercially reasonable and good faith efforts to achieve the Maximum Earnout for the benefit of Buyer and Seller. Buyer agrees (i) to act in good faith at all times during the Earn-Out Periods; (ii) to not fail to take any action that would be required by reasonable, skillful, prudent, and diligent business persons engaged in the independent operation of a business similar to the Business of Seller; and (iii) to allocate adequate resources to the achievement of the Earn- Out Threshold. (c) Within thirty (30) days following the final financial calculations for the month in which the Earn-Out calculation applies, Buyer shall prepare and deliver to Seller a preliminary report (the “Preliminary Earn-Out Statement”) which shall include Buyer’s calculation of the Adjusted EBITDA attributable to the Acquired Business for and including the period then ending, which may include any offsets pursuant to Section 6.5. (d) Promptly following receipt of the Preliminary Earn-Out Statement, Seller may review the same and, within thirty (30) days after the date of such receipt, may deliver to Buyer a certificate setting forth any objections to the Preliminary Earn-Out Statement, together with a summary of the reasons therefore and calculations which, in its view, are necessary to eliminate such objections (an “Earn-Out Objection Notice”). If Seller does not so object within such 30-day period, the Preliminary Earn-Out Statement shall be final and binding as the Earn- Out Statement for the applicable Earn-Out Period for purposes of this Agreement. (e) During the thirty (30) days immediately following the delivery of an Earn- Out Objection Notice (the “Earn-Out Objection Consultation Period”), Seller and Buyer shall seek in good faith to resolve any disagreement that they may have with respect to the matters specified in the Earn-Out Objection Notice. (f) If, at the end of the Earn-Out Objection Consultation Period, Seller and Buyer have been unable to resolve all disagreements that they may have with respect to the matters specified in the Earn-Out Objection Notice, then Seller and Buyer shall submit all matters that remain in dispute with respect to the Earn-Out Objection Notice (along with a copy of the Preliminary Earn-Out Statement marked to indicate those line items that are in dispute) to the Independent Accountant. Within thirty (30) days after the submission of such matters to the Independent Accountant, or as soon as practicable thereafter, the Independent Accountant, acting as an expert and not as an arbitrator, will make a final determination, binding on Seller and Buyer, in accordance with this Section 1.9(f), of the appropriate amount of each of the line items in the Preliminary Earn-Out Statement as to which Seller and Buyer disagree as specified in the Earn- Out Objection Notice. With respect to each disputed line item, such determination, if not in accordance with the position of either Seller or Buyer, shall not be in excess of the higher, nor less than the lower, of the amounts advocated by Seller in the Earn-Out Objection Notice or Buyer in the Preliminary Earn-Out Statement with respect to such disputed line item. For the avoidance of doubt, the Independent Accountant shall not review any line items or make any determination with respect to any matter other than those matters in the Earn-Out Objection Notice that remain 8 in dispute. The determination of the Adjusted EBITDA attributable to the Acquired Business for the applicable Earn-Out Period set forth therein that is final and binding on Seller and Buyer, as determined either through agreement of Seller and Buyer (deemed or otherwise) pursuant to Section 1.9(d) or (e) or through the determination of the Independent Accountant pursuant to this Section 1.9(f), are referred to herein as the “Earn-Out Statement.” (g) Within thirty (30) days of the determination of any final and binding Earn- Out Payment in accordance with this Section 1.9, Buyer shall (i) pay, or cause to be paid, by wire transfer of immediately available funds, the Cash Portion of the final and binding Earn-Out Payment amount to Seller and to such account set forth on the Purchase Price Closing Settlement Statement or such alternative account designated by Seller as delivered in writing to Buyer before executing such wire transfer, and (ii) issue the Stock Portion of the final and binding Earn-Out Payment amount to Seller. (h) Notwithstanding anything contained herein, if the employment of either Xxx Xxxxx or Xxxx Xxxxxxxx is terminated either For Cause by the Company (as defined in the Employment Agreements) or by either Xxx Xxxxx or Xxxx Xxxxxxxx without Good Reason (as defined in the Employment Agreements) prior to the Term (as defined in the Employment Agreements), any future Earn-Out Payments will be forfeited, and the Company will be under no obligation to pay with regard to Earn-Out Payments. Section 1.10.

Earn-Out Payment. (a) (i) In If EBITDA for the event that year beginning on or before November 30January 1, 2000, each of 2010 and ending on the performance statistics set forth on Schedule 2.4(a)(i) (the "Initial Performance Statistics") for all webpages on Webjump (the "Relevant Webpages") has been achieved (each as determined in the manner set forth on such Schedule) for a period of three consecutive calendar months, Parent shall deliver to Seller, in the manner set forth below, the Initial First Earn-Out Payment. The "Initial Earn-Out Payment" shall consist of such number of newly issued shares of Parent Common Stock as are equivalent to the quotient of (1) $6,250,000 (the "Initial Cash Amount") less the amount of any Losses (as defined in Section 8.2(a)) in excess of $50,000 claimed by the Parent Indemnified Group (as defined in Section 8.3(a)) prior to Date exceeds the Initial EBITDA Target, the Purchaser shall pay, or cause to be paid, the First Earn-Out Payment for such year to the Earn-Out Recipient. If EBITDA for the year beginning on January 1, 2010 and ending on the First Earn-Out Date (as defined below) (such Lossesexceeds the Additional EBITDA Target, the "Initial Pre-Earnout Losses"Purchaser shall pay, and, together with the Second Pre-Earnout Losses, as defined belowor cause to be paid, the "Pre-Earnout Losses") divided by (2) the Reference Share Price (as defined below); provided that in the event the Initial Additional Earn-Out Payment (calculated without deducting any amount of Initial Prefor such year to the Earn-Earnout Losses from the Initial Cash Amount) exceeds $17,500,000 in value (determined by multiplying the number of shares issuable in the Initial Out Recipient. The First Earn-Out Payment by the average closing price of Parent Common Stock as reported on the Nasdaq National Market for the five trading days immediately preceding the Initial Earn-Out Payment Date, if any (the "Initial Five Day Average")), the number of shares delivered in the Initial Earn Out Payment shall be reduced to equal the quotient of $17,500,000 (less any Initial Pre-Earnout Losses being deducted) divided by the Five Day Average. The Initial and Additional Earn-Out Payment shall be made within 30 days payable to the Earn-Out Recipient five (5) Business Days following the date earliest to occur of (w) the thirty-first day after receipt of the Earn-Out Report for the fiscal year ending December 31, 2010 without the Earn-Out Recipient notifying the Purchaser that the Seller Earn-Out Recipient objects to the computation of EBITDA set forth in such Earn-Out Report, (x) the date on which the Earn-Out Recipient shall have given the Purchaser notice to the effect that the Earn-Out Recipient has received written verification (no objection to the computation of EBITDA set forth in the manner set forth on Schedule 2.4Earn-Out Report for the fiscal year ending December 31, 2010, (y) that the Initial Performance Statistics set forth on such Schedule date as of which the Purchaser and the Earn-Out Recipient reach a settlement in accordance with Section 1.4, and (z) the date as of which the Purchaser and the Earn-Out Recipient shall have been achieved received the determination of the Arbitrating Accountant in accordance with Section 1.4 (such date, the "Initial “First Earn-Out Payment Date"”). If EBITDA for the fiscal year ended December 31, 2010 is less than the Initial EBITDA Target, the Earn-Out Recipient shall not be entitled to the First Earn-Out Payment or Additional Earn-Out Payment.

Earn-Out Payment. During the three (a3) year period following the Closing Date (ithe “Earn Out Period”), the Seller shall be entitled to earn additional consideration (the “Additional Consideration”) up to a maximum amount of $2,000,000 (the “Maximum Amount”), consisting of $500,000 cash (the “Cash”) and 65,217 shares of restricted common stock of Rick’s valued at $23.00 per share (the “Earn Out Shares”), based upon the earnings before income tax, depreciation and amortization (“EBITDA”) of the Buyer. Buyer will pay the Maximum Amount of the Additional Consideration to Seller, if the Buyer’s EBITDA during the three (3) year period following the Closing Date totals an aggregate of $2,400,000. At the end of each twelve (12) month period after the Closing Date (each such period hereinafter referred to as a “Twelve Month Anniversary”), the Buyer shall determine its EBITDA based upon the financial statements of the Buyer for such Twelve Month Anniversary. In the event that on or before November 30there is EBITDA during that Twelve Month Anniversary, 2000, each then the Seller shall be entitled to receive a percentage of the performance statistics set forth on Schedule 2.4(a)(i) (the "Initial Performance Statistics") for all webpages on Webjump (the "Relevant Webpages") has been achieved (each as determined in the manner set forth on such Schedule) for a period of three consecutive calendar monthsAdditional Consideration, Parent shall deliver to Seller, in the manner set forth below, the Initial Earn-Out Payment. The "Initial Earn-Out Payment" shall consist of such number of newly issued shares of Parent Common Stock as are equivalent up to the quotient Maximum Amount of (1) $6,250,000 (2,000,000, based upon the "Initial Cash Amount") less following formula: the amount of EBITDA during such Twelve Month Anniversary divided by $2,400,000, to be paid 25% in Cash and 75% in the Earn Out Shares. By way of illustration only, if the EBITDA of the Buyer during the first Twelve Month Anniversary is $1,200,000, then Buyer shall be entitled to Additional Consideration of $1,000,000, payable $250,000 in cash and 32,609 Earn Out Shares. The Earn Out Period shall terminate three (3) years after the Closing Date. In no event shall the Seller be entitled to any Losses (as defined in Section 8.2(a)) Additional Consideration in excess of $50,000 claimed by the Parent Indemnified Group (as defined in Section 8.3(a)) prior Maximum Amount. The shares of common stock issued to the Initial Earn-Seller at Closing and the Earn Out Payment Date (as defined below) (such Losses, the "Initial Pre-Earnout Losses", and, together with the Second Pre-Earnout Losses, as defined below, the "Pre-Earnout Losses") divided by (2) the Reference Share Price (as defined below); provided that in the event the Initial Earn-Out Payment (calculated without deducting any amount of Initial Pre-Earnout Losses from the Initial Cash Amount) exceeds $17,500,000 in value (determined by multiplying the number of shares issuable in the Initial Earn-Out Payment by the average closing price of Parent Common Stock as reported on the Nasdaq National Market for the five trading days immediately preceding the Initial Earn-Out Payment DateShares, if any (the "Initial Five Day Average"))any, the number of shares delivered in the Initial Earn Out Payment shall be reduced issued to equal the quotient of $17,500,000 (less any Initial Pre-Earnout Losses being deducted) divided by the Five Day Average. The Initial Earn-Out Payment shall be made within 30 days following the date that the Seller has received written verification (in are hereinafter collectively referred to as the manner set forth on Schedule 2.4) that the Initial Performance Statistics set forth on such Schedule have been achieved (such date, the "Initial Earn-Out Payment Date")“Rick’s Transaction Shares.”