Common use of Earn-Out Payments Clause in Contracts

Earn-Out Payments. As additional consideration for the intangible Purchased Assets (including goodwill), Buyer will pay to Seller Earn-Out Payments, if any, up to a maximum of Twelve Million Seven Hundred Fifty Thousand Dollars ($12,750,000) (the “Maximum Earn-Out Amount”), in cash, subject to set-off under Section 2.06(c)(vi) and Section 8.06(b), during the Earn-Out Period, in the amount of (i) One Hundred Forty Thousand Dollars ($140,000) for each Quickload manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickload) during the Earn-Out Period, and (ii) Thirty-Five Thousand Dollars ($35,000) for each Quickstand Silo and each Quickstand Trailer manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickstand Silo and Quickstand Trailer) during the Earn-Out Period (each, an “Earn-Out Payment” and collectively, the “Earn-Out Payments”). For the avoidance of doubt, (i) Buyer shall be required to pay Earn-Out Payments to Seller in accordance with the terms of this Agreement, regardless of whether or not Buyer has received any funds from the customer for the applicable Quickload, Quickstand Silo or Quickstand Trailer units sold or leased, and (ii) no Earn-Out Payment shall be payable to Seller with respect to any finished Quickload, Quickstand Silo or Quickstand Trailer that is part of the Inventory acquired by Buyer pursuant to this Agreement. In addition, in the event all or substantially all of the Purchased Assets are sold by Buyer or Buyer experiences a Change of Control prior to the expiration of the Earn-Out Period and prior to the Maximum Earn-Out Amount being paid, Buyer shall cause the acquiring party to assume all of Buyer’s obligations with respect to the Earn-Out Payments under this Section 2.07. Buyer makes no representations, warranties, covenants, promises or guarantees as to the amount of any Earn-Out Payments that may be earned by Seller during the Earn-Out Period.

Earn-Out Payments. As additional consideration for the intangible Purchased Assets (including goodwill), Buyer will pay to Seller Earn-Out Payments, if any, up to a maximum of Twelve Million Seven Hundred Fifty Thousand Dollars ($12,750,000) (the “Maximum Earn-Out Amount”), in cash, subject to set-off under Section 2.06(c)(vi) and Section 8.06(b), during the Earn-Out Period, in the amount of (i) One Hundred Forty Thousand Dollars Promptly, but in any event within five ($140,0005) for each Quickload manufactured by Buyer and ready for delivery Business Days, after the Escrow Agent’s receipt of joint written instructions (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickload) during the Earn-Out Period, and (ii) Thirty-Five Thousand Dollars ($35,000) for each Quickstand Silo and each Quickstand Trailer manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickstand Silo and Quickstand Trailer) during the Earn-Out Period (each, an “Earn-Out Payment” Payment Instructions”) from the DT Representative (on behalf of Purchaser) and collectively, the “Seller Representative that for any Earn-Out Payments”). For the avoidance of doubt, (i) Buyer shall be required to pay Earn-Out Payments to Seller Year there has been a final determination in accordance with the terms of this Agreement, regardless of whether or not Buyer has received any funds from the customer for the applicable Quickload, Quickstand Silo or Quickstand Trailer units sold or leased, and (ii) no Earn-Out Payment shall be payable to Seller with respect to any finished Quickload, Quickstand Silo or Quickstand Trailer that is part Section 2.2 of the Inventory acquired by Buyer pursuant Share Exchange Agreement (but subject to this Agreement. In addition, in the event all or substantially all Sections 2.4 and 2.5 of the Purchased Assets are sold by Buyer or Buyer experiences a Change of Control prior to the expiration of the Earn-Out Period and prior to the Maximum Earn-Out Amount being paid, Buyer shall cause the acquiring party to assume all of Buyer’s obligations Share Exchange Agreement) with respect to the Earn-Out Payments under this Section 2.07. Buyer makes no representationsPayment for such Earn-Out Year or the Alternative Earn-Out Payment (the date that the Escrow Agent receives Earn-Out Payment Instructions with respect to any Earn-Out Year, warrantiesan “Earn-Out Release Date”), covenants, promises or guarantees as the Escrow Agent shall distribute Escrow Property from the Escrow Account in accordance with such Earn-Out Payment Instructions (A) to the Sellers in an amount equal to the Earn-Out Payment (excluding for the avoidance of doubt, the amount of any Accrued Dividends payable by the Purchaser separate from the Escrow Account) less the sum of (I) the Reserved Amount (as defined below) as of the date of such payment, and (II) the amount of any Indemnification Claims that have been paid from the Escrow Account prior to such time but have not previously been used to reduce the amount of any prior Earn-Out Payment (but net of any prior Earn-Out Payments that have not yet been paid and are still being retained in the Escrow Account as of such time for Indemnification Claims that are still Pending Claims as of such time), up to a maximum amount equal to such Earn-Out Payment, and (B), after the last Earn-Out Year only, to Purchaser any portion of any Earn-Out Payments that may be were not earned by Seller during the Sellers in accordance with the Share Exchange Agreement. For the determination of the Escrow Shares to be withheld for the Reserved Amount, the Escrow Shares shall be valued at the Purchaser Share Price as of the applicable Earn-Out PeriodRelease Date.

Earn-Out Payments. As additional Pursuant to the terms and subject to the conditions set forth herein, the Earn-Out Recipient shall be eligible to receive in the future additional, deferred consideration for payable by the intangible Purchased Assets Purchaser based on achievement by the Acquired Business of the EBITDA Targets during the calendar years ending December 31, 2010 and December 31, 2011, as further provided in this Agreement. The amount of the Earn-Out Payment payable to the Earn-Out Recipient with respect to each of the years ending as of such dates shall be determined pursuant to Exhibit A hereto. Such amounts will be payable to the Earn-Out Recipient if and only if the Acquired Business is able to (including goodwill)i) satisfy the conditions set forth herein and (ii) meet the requirements and achieve the EBITDA Targets set forth on Exhibit A. Timing and Manner of Earn-Out Payment. Subject to Sections 1.4, Buyer will 1.5 and 1.6 hereof, on each Earn Out Payment Date, the Purchaser shall pay and deliver to Seller the Earn-Out Recipient, the Earn-Out Payments, if any, up that shall be due to a maximum of Twelve Million Seven Hundred Fifty Thousand Dollars ($12,750,000) (the “Maximum Earn-Out Amount”), in cash, subject to set-off under Section 2.06(c)(vi) and Section 8.06(b), during the Earn-Out Period, Recipient in the amount of (i) One Hundred Forty Thousand Dollars ($140,000) for each Quickload manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease accordance with a customer for the applicable Quickload) during Exhibit A. The Earn-Out Payments payable to the Earn-Out PeriodRecipient shall be payable in accordance with the terms and subject to the conditions of this Agreement (including, and (ii) Thirty-Five Thousand Dollars ($35,000) for each Quickstand Silo and each Quickstand Trailer manufactured without limitation, those conditions set forth on Exhibit A), by Buyer and ready for delivery (regardless wire transfer of whether or not Buyer has an agreement of sale or lease with a customer for immediately available funds to the applicable Quickstand Silo and Quickstand Trailer) during bank account designated by the Earn-Out Period Recipient to the Purchaser on Exhibit B attached hereto. The right of the Earn-Out Recipient to receive the Earn-Out Payments shall not be transferable, in whole or in part, to any other Person without the prior written consent of the Purchaser, which shall not be unreasonably withheld or delayed; provided, however, that Earn-Out Recipient may transfer its right to receive the Earn-Out Payments to one or more Sellers without the consent of the Purchaser upon prior written notice to the Purchaser of such transfer, and each such Seller may transfer his or her right to receive the Earn-Out Payments by testate or intestate successor or to one or more of the other Sellers. Earn-Out Report. Within 30 days (or as soon as reasonably practicable) after receipt by the Purchaser of the consolidated audited annual financial statements for Addus HomeCare Corporation, a Delaware corporation (“Addus HomeCare”) for the fiscal year ending on each of December 31, 2010 and December 31, 2011 (the “Audited Financial Statements”), the Purchaser will prepare and deliver to the Earn-Out Recipient a report, setting forth, in reasonable detail, a computation of EBITDA for the Acquired Business (which shall be computed in accordance with the definition of “EBITDA” set forth in Article II hereof) during the preceding fiscal year, and attaching a copy of the Audited Financial Statements and a copy of the consolidating financial statements applicable to the Purchaser for such period (each, an “Earn-Out Payment” and collectively, the “Report”). The calculation of EBITDA in such Earn-Out Payments”). For the avoidance of doubt, (i) Buyer Report shall be required to pay consistent with the methodology used in the report of Xxxxx Xxxxxx PLLC (the Purchaser’s accountants), dated May 18, 2010, and in accordance with Article II hereof. Unless the Earn-Out Payments to Seller in accordance with the terms of this AgreementRecipient, regardless of whether or not Buyer has received any funds from the customer for the applicable Quickload, Quickstand Silo or Quickstand Trailer units sold or leased, and within thirty (ii30) no Earn-Out Payment shall be payable to Seller with respect to any finished Quickload, Quickstand Silo or Quickstand Trailer that is part of the Inventory acquired by Buyer pursuant to this Agreement. In addition, in the event all or substantially all of the Purchased Assets are sold by Buyer or Buyer experiences a Change of Control prior to the expiration days after receipt of the Earn-Out Period and prior Report, notifies the Purchaser in writing that it objects to the Maximum computation of EBITDA of the Acquired Business set forth in the Earn-Out Amount being paidReport, Buyer the Earn-Out Report shall be deemed accepted by the Earn-Out Recipient, the Seller Representative, the Sellers and the Purchaser and will be binding and conclusive for all purposes of this Agreement. The Earn-Out Recipient may make inquiries of the Purchaser and its accountants and appropriate employees regarding questions concerning or disagreements with an Earn-Out Report arising in the course of their review thereof, and the Purchaser shall use reasonable efforts to cause the acquiring party any such employees and accountants to assume all of Buyer’s obligations cooperate with respect and respond to such inquiries in a timely manner (subject to the Earn-Out Payments under Recipient entering into any confidentiality and other agreements reasonably required by the accountants). For purposes of this Section 2.071.3, Purchaser shall be deemed to have received the consolidated audited financial statements of Addus HomeCare as of the date that Addus HomeCare first files its Form 10-K, or any successor form, with the Securities and Exchange Commission for the relevant fiscal year, if Purchaser has not periodically received such financial statements. Buyer makes no representations, warranties, covenants, promises or guarantees as Objections to the amount of any Earn-Out Payments that may be earned by Seller during Report; Arbitrating Accountants. If the Earn-Out Period.Recipient objects to the computation of EBITDA set forth in the Earn-Out Report by providing the appropriate notice in accordance with Section 1.3, the amount of EBITDA shall be determined by good faith negotiation between the Earn-Out Recipient and the Purchaser. If the Purchaser and the Earn-Out Recipient are unable to reach agreement within thirty (30) days after such notification, the determination of the amount of EBITDA for the period in question shall be submitted to an accounting firm as may be mutually agreed upon by the parties hereto (the “Arbitrating Accountants”), whose determination shall be (i) in writing, (ii) furnished to the Earn-Out Recipient and the Purchaser as soon as practicable (and in no event later than thirty (30) days after submission of the dispute to the

Earn-Out Payments. As additional Purchase Price consideration for the intangible Purchased Assets (including goodwill), Buyer will pay to Seller Earn-Out PaymentsInterests, if any, up to a maximum of Twelve Million Seven Hundred Fifty Thousand Dollars ($12,750,000) (the “Maximum Earn-Out Amount”), in cash, subject to set-off under Section 2.06(c)(vi) and Section 8.06(b), during the Earn-Out Period, in the amount of (i) One Hundred Forty Thousand Dollars ($140,000) for each Quickload manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickload) during the Earn-Out Period, and (ii) Thirty-Five Thousand Dollars ($35,000) for each Quickstand Silo and each Quickstand Trailer manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickstand Silo and Quickstand Trailer) during the Earn-Out Period (each, an “Earn-Out PaymentCategories” set forth on Schedule B are satisfied under the methodologies set forth on Schedule B, then Buyer shall pay to the Members (in accordance with their Percentage Interests) up to Three Million Dollars ($3,000,000), as calculated on Schedule B, which Buyer will pay, or cause to be paid, in Buyer’s sole option: (A) in cash, or (B) a minimum of 25% in cash and collectivelythe remainder in shares of Buyer Stock (using a price per share of $3.75 per share) (such shares, the “Earn-Out PaymentsBuyer Stock”). For the avoidance of doubt, provided, that (iA) Buyer shall be required to pay 11.066% of the cash Earn-Out Payments due to Seller the Members in accordance with cash to Xxxx Xxxxx (which the terms of this Agreement, regardless of whether or not Buyer has received any funds Parties agree will be deducted equally from the customer for the applicable Quickload, Quickstand Silo or Quickstand Trailer units sold or leased, and (ii) no Earn-Out Payment shall be payable to Seller with respect to any finished Quickload, Quickstand Silo or Quickstand Trailer that is part of the Inventory acquired by Buyer pursuant to this Agreement. In addition, in the event all or substantially all of the Purchased Assets are sold by Buyer or Buyer experiences a Change of Control prior to the expiration portion of the Earn-Out Period and prior Payments due to the Maximum Members in accordance with their respective Percentage Interests), and (B) Buyer shall pay up to 3.334% of the cash Earn-Out Amount being paid, Buyer shall cause Payment due to Xxxxxxx in cash to Xxxxxx Xxxxxxxx (which the acquiring party to assume all Parties agree will be deducted from the portion of Buyer’s obligations with respect to the Earn-Out Payments under this Section 2.07Payment due to Xxxxxxx in accordance with his Percentage Interest). Buyer makes no representations, warranties, covenants, promises or guarantees as to the amount of shall make any cash Earn-Out Payments that may no later than the end of Buyer’s fiscal quarter following the fiscal quarter during which the Post-Closing Payment Statement is final, binding, and conclusive upon the Parties. The date on which the cash Earn-Out Payments are actually made under this Agreement is the “Earn-Out Payment Date.” The Earn-Out Buyer Stock, if any, shall be earned by Seller during issued in three equal tranches: (i) the first, upon the Earn-Out PeriodPayment Date, (ii) the second, on or before the 12-month anniversary of the Earn-Out Payment Date, and (iii) the third, on or before the 24-month anniversary of the Earn-Out Payment Date. Promptly following such issuances, the Company will deliver to the Members evidence from the Company’s transfer agent of the issuance of such Earn-Out Buyer Stock to the Members.

Earn-Out Payments. As additional In consideration for of the intangible Purchased Assets (including goodwill)transfer of the Shares to Buyer at the Closing, Buyer will pay hereby agrees to make payments to Seller Earn-Out Payments, if any, up to a maximum based on the Qualified Cash Receipts of Twelve Million Seven Hundred Fifty Thousand Dollars the Company ($12,750,000) (the “Maximum Earn-Out Amount”), in cash, subject to set-off under Section 2.06(c)(vi) and Section 8.06(b), during the Earn-Out Period, in the amount of (i) One Hundred Forty Thousand Dollars ($140,000) for each Quickload manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickload) during the Earn-Out Period, and (ii) Thirty-Five Thousand Dollars ($35,000) for each Quickstand Silo and each Quickstand Trailer manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickstand Silo and Quickstand Trailer) during the Earn-Out Period (each, an “Earn-Out Payment” and collectively, the “Earn-Out Payments”)) as provided in this Section 2.2. For the avoidance of doubt, (i) Buyer shall be required to pay The Earn-Out Payments to Seller in accordance with for each calendar year shall equal 5% of the terms first $2,500,000 of this Agreement, regardless of whether or not Buyer has received any funds from the customer Company’s Qualified Cash Receipts for the applicable Quickloadyear and 10% of all Qualified Cash Receipts of the Company in excess of $2,500,000 for the year, Quickstand Silo or Quickstand Trailer units sold or leased, and (ii) no provided that the aggregate total of all Earn-Out Payment Payments for all years shall be payable not exceed $1,175,000. After a total of $1,175,000 in Earn-Out Payments (plus any accrued interest as provided below) has been paid, Buyer shall have no further liability to Seller with respect under this Section 2.2. Buyer shall establish a separate checking account for the deposit of amounts necessary to make Earn-Out Payments (the “Earn-Out Account”) and shall not deposit any finished Quickload, Quickstand Silo or Quickstand Trailer that is part of the Inventory acquired by Buyer pursuant to this Agreement. In addition, other funds in the event all or substantially all of Earn-Out Account (other than funds necessary to meet bank minimum deposit requirements). On each business day, Buyer shall cause the Purchased Assets are sold by Buyer or Buyer experiences a Change of Control prior Company to deposit in the expiration Earn-Out Account the amount of the Earn-Out Period Payment due in respect of Qualified Cash Receipts received on the preceding business day. Each such deposit shall be deemed a distribution by the Company to Buyer and prior to the Maximum Earn-Out Amount being paid, Buyer shall cause the acquiring party Company to assume all properly authorize such distributions. Within five business days after the end of Buyer’s obligations with respect each calendar month, Buyer shall wire transfer to Seller the amount of the Earn-Out Payment due in respect of Qualified Cash Receipts received in that month, without offset or reduction for any amounts claimed by Buyer or the Company. Within 15 days after the end of each calendar month, Buyer shall provide Seller with a statement of Qualified Cash Receipts for that month, indicating the Qualified Cash Receipts received from each customer and the contract or transaction to which each payment of Qualified Cash Receipts relates. Within 30 days after the end of each calendar quarter, Buyer shall provide Seller with a Balance Sheet of the Company as of the end of the quarter and a schedule of pending contracts under which the Company is or will become entitled to receive Qualified Cash Receipts and a reconciliation of the Qualified Cash Receipts in respect of which Earn-Out Payments have been made with the payment schedule under this Section 2.07those contracts. Seller shall have the right to examine and audit the books and records of the Company to verify the financial statements provided by Buyer makes no representationshereunder and the amount of Qualified Cash Receipts and Earn-Out Payments due. Such examination and audit shall be at Seller’s expense, warrantiesexcept that, covenants, promises if Seller discovers a discrepancy that would result in an increase of 10% or guarantees as to more in the amount of any monthly Earn-Out Payments that may be earned Payment, Buyer shall reimburse Seller for the reasonable out-of-pocket costs incurred by Seller during in connection therewith. Any Earn-Out Payment not made when due shall bear interest from the due date until paid, compounded monthly, at a rate equal to the higher of (i) the highest rate then being paid by the Company for borrowed money under any note, loan agreement or other arrangement plus 5% per annum or (ii) the highest rate then being paid by Seller for borrowed money under any note, loan agreement or other arrangement, not to exceed, in either case, the highest rate permitted by applicable law. In the event that the Company is required to repay to a customer all or any portion of a Qualified Cash Receipt in respect of which an Earn-Out Payment has previously been made to Seller, Seller will return the portion of the Earn-Out PeriodPayment previously received that relates to the amount repaid, upon the written request of Buyer and subject to the receipt of reasonably satisfactory documentation of such repayment, and the amount so returned shall be deemed never to have been paid under this Section 2.2.

Earn-Out Payments. As additional consideration for the intangible Purchased Assets (including goodwill), Buyer will pay to Seller Earn-Out Payments, if any, up to a maximum of Twelve Million Seven Hundred Fifty Thousand Dollars ($12,750,000) (the “Maximum Earn-Out Amount”), in cash, subject to set-off under Section 2.06(c)(vi) and Section 8.06(b), during the Earn-Out Period, in the amount of (i) One Hundred Forty Thousand Dollars ($140,000) for each Quickload manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickload) during the Earn-Out Period, and (ii) Thirty-Five Thousand Dollars ($35,000) for each Quickstand Silo and each Quickstand Trailer manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickstand Silo and Quickstand Trailer) during the Earn-Out Period (each, an “Earn-Out Payment” and collectively, the “Earn-Out Payments”). For the avoidance of doubt, (i) Buyer shall be required to pay Earn-Out Payments to Seller in accordance with the terms of this Agreement, regardless of whether or not Buyer has received any funds from the customer for the applicable Quickload, Quickstand Silo or Quickstand Trailer units sold or leased, and (ii) no Earn-Out Payment shall be payable to Seller with In respect to any finished Quickload, Quickstand Silo Leases or Quickstand Trailer New Leases that is part of the Inventory acquired by Buyer pursuant to this Agreement. In addition, in the event all or substantially all of the Purchased Assets are sold by Buyer or Buyer experiences a Change of Control fully executed prior to the expiration of the Earn-Out Period Period, on the twenty-fifth (25th) day of each calendar month after the Phase I Closing Date, provided the subject Lease or New Lease is a Qualified Lease in respect to Phase I on and after the Phase I Closing Date and a Qualified Lease in respect to Phase II on and after the Phase II Closing Date, but prior to the Maximum Lease Reservation Date, Purchaser shall pay to Seller the Earn-Out Amount being paidPayment computed in respect to those Leases and New Leases that became, Buyer for the first time, Qualified Leases during the preceding month and for which no Earn-Out Payment had been previously paid to Seller. In the event a New Lease is executed during the First or Second Segment, but it does not become a Qualified Lease until after the expiration of the Earn-Out Period, but prior to the Lease Reservation Date, Purchaser, subject to the satisfaction of the Earn-Out Conditions, shall cause pay to Seller at the acquiring party to assume all of Buyer’s obligations with respect time aforesaid, an amount equal to the Earn-Out Payments under this Section 2.07Payment computed in respect to such subsequent Qualified Lease. Buyer makes no representationsAny Earn-Out Payment shall be subject to any unsatisfied right of offset as provided in Paragraphs 5.04, warranties9.03, covenants14.06, promises 14.07 and 16.01 hereof. Notwithstanding the foregoing, the Earn-Out Payment or guarantees Closing Payment in respect to a particular Qualified Lease (excluding those that are Qualified Leases in respect to an Unsigned Lease or a Rental Undertaking with the Prospect of a Disapproved Lease as provided in each instance in Paragraph 13.04 hereof) shall not be due and payable by Purchaser to Seller, unless and until, Seller, prior to the amount Lease Reservation Date, has delivered or caused to be delivered to Purchaser, in respect to the subject Qualified Lease, (i) a fully executed original thereof; (ii) a certificate of occupancy from the applicable governmental authority authorizing the uninterrupted occupancy by the subject Tenant or New Tenant of the subject premises; (iii) the applicable Tenant Estoppel containing no material exceptions or Seller's Estoppel, if in accordance with the provisions of Paragraph 7.15 hereof; (iv) Schedule 10.01(xvii) from Seller in respect to the subject Lease or New Lease, updated to the date the Earn-Out Payment is due, setting forth any unsatisfied Tenant Inducement in respect thereto; (v) evidence, in form and content reasonably satisfactory to Purchaser, that the portion of Tenant Inducements payable to the subject Tenant or New Tenant has been paid by Seller; (vi) an original of the insurance certificates required from the subject New Tenant under the Qualified Lease; (vii) the date down and increased coverage endorsement for the Title Policy required pursuant to the provisions of Paragraph 6.04 hereof, provided Purchaser pays fifty percent (50%) of the Shared Closing Costs in respect thereto; and (viii) copies of the "as-built" plans and specifications for the tenant improvements for the subject Qualified Lease (collectively, in respect to clauses (i) through (viii) above, "Earn-Out Conditions"). The Earn-Out Payment obligations of this Paragraph 13.07 shall survive each Closing Date and the later termination of this Agreement. If the Earn-Out Conditions are not satisfied for the subject Lease or New Lease on or prior to the Lease Reservation Date therefor, then Purchaser shall have no obligation to make any Earn-Out Payments that may be earned by Seller during the Earn-Out PeriodPayment in respect thereto.

Earn-Out Payments. As additional consideration for the intangible Purchased Assets (including goodwill), Buyer will pay to Seller If an Earn-Out Payments, if any, up to a maximum of Twelve Million Seven Hundred Fifty Thousand Dollars ($12,750,000) (the “Maximum Earn-Out Amount”), in cash, subject to set-off under Section 2.06(c)(vi) Payment becomes due and Section 8.06(b), during the Earn-Out Period, in the amount of (i) One Hundred Forty Thousand Dollars ($140,000) for each Quickload manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickload) during the Earn-Out Period, and (ii) Thirty-Five Thousand Dollars ($35,000) for each Quickstand Silo and each Quickstand Trailer manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickstand Silo and Quickstand Trailer) during the Earn-Out Period (each, an “Earn-Out Payment” and collectively, the “Earn-Out Payments”). For the avoidance of doubtpayable, (i) Buyer shall be required to pay Earnfor each Non-Out Payments to Seller in accordance with the terms of this AgreementEmployee Seller, regardless of whether or not Buyer has received any funds from the customer for the applicable Quickload, Quickstand Silo or Quickstand Trailer units sold or leased, and (ii) no such Earn-Out Payment shall be payable made in cash in the amount specified next to Seller with respect such Non-Employee Seller’s name under the column “Cash Consideration Paid if Earn-Out Achieved” on the Transaction Consideration Disbursement Schedule, and (ii) for each Employee Seller, any such Earn-Out Payment shall be made (x) partially in cash in the amount specified next to any finished Quickloadsuch Employee Seller’s name under the column “Cash Consideration Paid if Earn-Out Achieved” on the Transaction Consideration Disbursement Schedule, Quickstand Silo or Quickstand Trailer that is part of the Inventory acquired by Buyer pursuant to this Agreement. In additionand (y) partially in Purchaser Common Stock, in the event all or substantially all number of shares specified next to such Employee Seller’s name under the Purchased Assets are sold column “Stock Consideration Paid if Earn-Out Achieved” on the Transaction Consideration Disbursement Schedule. Any such cash payments shall be made by Buyer or Buyer experiences a Change of Control prior to Purchaser within five (5) Business Days following the expiration final determination of the Earn-Out Period and prior Payment pursuant to this Section 2.5 by wire transfer of immediately available funds to such account or accounts as the Maximum Earn-Out Amount being paid, Buyer shall cause Seller Representative specifies to Purchaser in writing within two (2) Business Days following the acquiring party to assume all final determination of Buyer’s obligations with respect to the Earn-Out Payments under Payment pursuant to this Section 2.072.5. Buyer makes no representations, warranties, covenants, promises or guarantees as Any such stock payments shall be made within five (5) Business Days following the final determination of the Earn-Out Payment pursuant to this Section 2.5 by Purchaser causing the amount transfer of the applicable number of shares of Purchaser Common Stock in book-entry form to be issued in the name of the applicable Employee Seller set forth in the Transaction Consideration Disbursement Schedule. The Parties hereto understand and agree that the contingent right to receive any Earn-Out Payments that may Payment shall not be earned represented by Seller during the Earn-Out Periodany form of certificate or other instrument, is not transferable, except by operation of Legal Requirements relating to descent and distribution, divorce and community property.

Earn-Out Payments. As additional consideration for Subject to Section 10.6, following the intangible Purchased Assets earlier of June 1, 2023 and the date that is twelve (including goodwill12) months following the date of the First Commercial Sale of Lyvispah (such date, the “Earn-Out Start Date”), Buyer will shall pay to Seller EarnSellers (i) twelve and one-Out Payments, if any, up to a maximum half percent (12.5%) of Twelve the first Thirty Million Seven Hundred Fifty Thousand US Dollars ($12,750,00030,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the “Maximum Earn-Out Amount”), in cash, subject to set-off under Section 2.06(c)(vi) and Section 8.06(b), Calendar Year during which the Earn-Out Period, in Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the amount of Pipeline Products during each Calendar Year (i) One Hundred Forty Thousand Dollars ($140,000) for each Quickload manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for including the applicable Quickload) Calendar Year during which the Earn-Out Period, and (iiStart Date occurs) Thirty-Five Thousand exceeding Thirty Million US Dollars ($35,00030,000,000.00) for (each Quickstand Silo and each Quickstand Trailer manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickstand Silo and Quickstand Trailer) during the Earn-Out Period (eachsuch payment, an “Earn-Out Payment” and collectively, the “”). Such Earn-Out Payments”)Payments shall be made no later than forty-five (45) calendar days following the end of each Calendar Quarter. Each such Earn-Out Payment shall be made to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, (i) upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall be required have (A) the right to pay Earn-Out Payments own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to Seller in accordance with determine the terms and conditions of this Agreementthe development and Commercialization of the Pipeline Products, regardless and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out Payment, (2) neither Buyer has nor any Affiliates of Buyer promised or projected any amounts to be received by Sellers with respect of any funds from Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect to the customer for likelihood of development or potential sales of the applicable QuickloadPipeline Products, Quickstand Silo or Quickstand Trailer units sold or leased(3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (ii4) no the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be payable evidenced by a certificate or other instrument, and (y) does not represent any right other than the right to Seller with respect to any finished Quickload, Quickstand Silo or Quickstand Trailer that is part of the Inventory acquired by Buyer pursuant to this Agreement. In addition, in the event all or substantially all of the Purchased Assets are sold by Buyer or Buyer experiences a Change of Control prior to the expiration of the Earn-Out Period and prior to the Maximum Earn-Out Amount being paid, Buyer shall cause the acquiring party to assume all of Buyer’s obligations with respect to receive the Earn-Out Payments under pursuant to this Section 2.07. Buyer makes no representations, warranties, covenants, promises or guarantees as to the amount of any Earn-Out Payments that may be earned by Seller during the Earn-Out PeriodAgreement.

Earn-Out Payments. As additional consideration for the intangible Purchased Assets (including goodwill), Buyer will pay to Seller Earn-Out Payments, if any, up to a maximum of Twelve Million Seven Hundred Fifty Thousand Dollars ($12,750,000) (the “Maximum Earn-Out Amount”), in cash, subject to set-off under Section 2.06(c)(vi) and Section 8.06(b), during the Earn-Out Period, in the amount of (i) One Hundred Forty Thousand Dollars ($140,000) for each Quickload manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickload) during the Earn-Out Period, and (ii) Thirty-Five Thousand Dollars ($35,000) for each Quickstand Silo and each Quickstand Trailer manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickstand Silo and Quickstand Trailer) during the Earn-Out Period (each, an “Earn-Out Payment” and collectively, the “Earn-Out Payments”). For the avoidance of doubt, (i) Buyer shall be required to pay Earn-Out Payments to Seller in accordance with the terms of this Agreement, regardless of whether or not Buyer has received any funds from the customer for the applicable Quickload, Quickstand Silo or Quickstand Trailer units sold or leased, and (ii) no Earn-Out Payment shall be payable to Seller with In respect to any finished Quickload, Quickstand Silo Leases or Quickstand Trailer New Leases that is part of the Inventory acquired by Buyer pursuant to this Agreement. In addition, in the event all or substantially all of the Purchased Assets are sold by Buyer or Buyer experiences a Change of Control fully executed prior to the expiration of the Earn-Out Period and Period, on the twenty-fifth (25th) day of each calendar month after the Closing Date, provided the subject Lease or New Lease is a Qualified Lease prior to the Maximum Lease Reservation Date, Purchaser shall pay to Seller the Earn-Out Amount being paidPayment computed in respect to those Leases and New Leases that became, Buyer for the first time, Qualified Leases during the preceding month and for which no Earn-Out Payment had been previously paid to Seller. In the event a New Lease is executed during the First or Second Segment, but it does not become a Qualified Lease until after the expiration of the Earn-Out Period, but prior to the Lease Reservation Date, Purchaser, subject to the satisfaction of the Earn-Out Conditions, shall cause pay to Seller at the acquiring party to assume all of Buyer’s obligations with respect time aforesaid, an amount equal to the Earn-Out Payments under this Section 2.07Payment computed in respect to such subsequent Qualified Lease. Buyer makes no representationsAny Earn-Out Payment shall be subject to any unsatisfied right of offset as provided in Paragraphs 5.04, warranties9.03 and 16.01 hereof. Notwithstanding the foregoing, covenantsthe Earn-Out Payment or Closing Payment in respect to a particular Qualified Lease (excluding those that are Qualified Leases in respect to an Unsigned Lease or a Rental Undertaking with the Prospect of a Disapproved Lease as provided in each instance in Paragraph 13.04 hereof) shall not be due and payable by Purchaser to Seller, promises or guarantees as unless and until, Seller, prior to the amount Lease Reservation Date, has delivered or caused to be delivered to Purchaser, in respect to the subject Qualified Lease, (i) a fully executed original thereof; (ii) a certificate of occupancy from the applicable governmental authority authorizing the uninterrupted occupancy by the subject Tenant or New Tenant of the subject premises; (iii) the applicable Tenant Estoppel containing no material exceptions or Seller's Estoppel, if in accordance with the provisions of Paragraph 7.15 hereof; (iv) Schedule 10.01(xvii) from Seller in respect to the subject Lease or New Lease, updated to the date the Earn-Out Payment is due, setting forth any unsatisfied Tenant Inducement in respect thereto; (v) evidence, in form and content reasonably satisfactory to Purchaser, that the portion of Tenant Inducements payable to the subject Tenant or New Tenant has been paid by Seller; (vi) an original of the insurance certificates required from the subject New Tenant under the Qualified Lease; (vii) the date down and increased coverage endorsement for the Title Policy required pursuant to the provisions of Paragraph 6.04 hereof, provided Purchaser pays fifty percent (50%) of the Shared Closing Costs in respect thereto; and (viii) copies of the "as-built" plans and specifications for the tenant improvements for the subject Qualified Lease (collectively, in respect to clauses (i) through (viii) above, "Earn-Out Conditions"). The Earn-Out Payment obligations of this Paragraph 13.07 shall survive the Closing Date and the later termination of this Agreement. If the Earn-Out Conditions are not satisfied for the subject Lease or New Lease on or prior to the Lease Reservation Date therefor, then Purchaser shall have no obligation to make any Earn-Out Payments that may be earned by Seller during the Earn-Out PeriodPayment in respect thereto.

Earn-Out Payments. As additional consideration If, and only if, the Revenue for the intangible Purchased Assets (including goodwill), Buyer will pay to Seller a particular Earn-Out PaymentsPeriod Quarter is equal to or greater than 80% of the Revenue Target for such Earn-Out Period Quarter, if anythen in addition to any other amounts payable hereunder, up the Purchaser shall pay to a maximum of Twelve Million Seven Hundred Fifty Thousand Dollars the Company Equityholders, at such time after the Closing Date as specified herein and in the manner specified in Section 2.13, an aggregate amount with respect to such Earn-Out Period Quarter equal to ($12,750,000i) the Earn-Out Amount for such Earn-Out Period Quarter, minus (ii) any Excess Spend Penalty for such Earn-Out Period Quarter, minus (iii) any Operating Area Excess Expense Amounts for such Earn-Out Period Quarter (such amount, with respect to any Earn-Out Period Quarter, the “Maximum Adjusted Earn-Out Amount”), in cash, subject to set-off under Section 2.06(c)(vi) and Section 8.06(b), during the a deduction for any applicable Earn-Out Period, in Transaction Expenses pursuant to Section 2.12(c). If the amount of (i) One Hundred Forty Thousand Dollars ($140,000) Revenue for each Quickload manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickload) during the Earn-Out Period, and (ii) Thirty-Five Thousand Dollars ($35,000) for each Quickstand Silo and each Quickstand Trailer manufactured by Buyer and ready for delivery (regardless of whether or not Buyer has an agreement of sale or lease with a customer for the applicable Quickstand Silo and Quickstand Trailer) during the particular Earn-Out Period (eachQuarter does not equal or exceed at least 80% of the Revenue Target for such Earn-Out Period Quarter, an no Earn-Out Amount or Adjusted Earn-Out Amount will be payable for such Earn-Out Period Quarter. The aggregate of all Adjusted Earn-Out Amounts payable with respect to all 2018 Earn-Out Period Quarters pursuant to this Section 2.12(a) is referred to herein as the “2018 Earn-Out Payment” and collectively, the “aggregate of all Adjusted Earn-Out Payments”). For the avoidance of doubt, (i) Buyer shall be required to pay Earn-Out Payments to Seller in accordance with the terms of this Agreement, regardless of whether or not Buyer has received any funds from the customer for the applicable Quickload, Quickstand Silo or Quickstand Trailer units sold or leased, and (ii) no Earn-Out Payment shall be Amounts payable to Seller with respect to any finished Quickload, Quickstand Silo or Quickstand Trailer that is part of the Inventory acquired by Buyer pursuant to this Agreement. In addition, in the event all or substantially all of the Purchased Assets are sold by Buyer or Buyer experiences a Change of Control prior to the expiration of the 2019 Earn-Out Period and prior Quarters pursuant to this Section 2.12(a) is referred to herein as the Maximum “2019 Earn-Out Amount being paid, Buyer shall cause the acquiring party to assume all Payment.” Table of Buyer’s obligations with respect to the Earn-Out Payments under this Section 2.07. Buyer makes no representations, warranties, covenants, promises or guarantees as to the amount of any Earn-Out Payments that may be earned by Seller during the Earn-Out Period.Contents