Common use of Earn-Out Clause in Contracts

Earn-Out. As additional consideration for the Purchased Assets, Seller shall be entitled to receive (i) with respect to the 12 month period commencing on the first day of the month on or after the Effective Date and ending on the last day of the twelfth month thereafter, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds the Base EBIT, if any, and (ii) with respect to the next 12 month period, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds Base EBIT ("Earn Out Payments"). Buyer will prepare the foregoing EBIT calculations and deliver the same to Seller within forty-five (45) days after the end of the twelve month period for which they are required, together with a written certification that such calculations have been prepared and calculated in accordance herewith. Thereafter, Seller will conduct a review of these items and notify Buyer not later than thirty (30) days after receipt of such calculations as to whether they are acceptable to Seller. If Seller objects to such calculations and Buyer and Seller are able to resolve their dispute within fifteen (15) days after Seller's objection, such calculations (reflecting the resolution) will become final and binding on the parties. If Buyer and Seller are unable to resolve their dispute within fifteen (15) days after Seller's objection, the dispute will be resolved by the Independent Accountants. The Independent Accountants will be instructed to perform their services as expeditiously as possible and the resolution of the Independent Accountants shall be final and binding on the parties. The fees and expenses of the Independent Accountants for the resolution of the dispute shall be shared by Buyer and Seller in inverse proportion to the respective amounts of the disputed matters which are resolved in its favor. Within ten (10) days after the amount of any Earn Out Payment is finally determined in accordance with the foregoing it shall be paid (i) by wire transfer of 75% of such amount in immediately available funds to an account designated in writing by Seller, and (ii) by issuance to Seller of shares of New Horizons Stock having an aggregate Fair Market Value equal to 25% of such amount. For purposes of this Section 3.3, "Fair Market Value" of a share of New Horizons Stock shall mean the average per share closing price of New Horizons Stock on the NASDAQ Stock Market (or successor exchange) for the thirty (30) full trading days ending on the last day of the twelve month period with respect to which such Earn Out Payment was earned. For purposes of this Section 3:

Earn-Out. As additional consideration part of the Purchase Price payable hereunder, Purchaser shall pay to Seller $3,000,000 (the “Earn-Out Payment”) in cash as an earn-out payment to be determined as follows: (a)The Earn-Out Payment shall be based on the outstanding principal balance (including Poolable Advances) of Mortgage Loans that are issued by the Company into GNMA HMBS pools for securitization of Mortgage Loans for the Purchased Assets, Seller shall be entitled to receive (i) with respect to the 12 six-month period commencing ending on December 31, 2013, as set forth on the first day production reports produced by management of the month on or after the Effective Date and ending on the last day of the twelfth month thereafter, an amount equal to three (3) times the amount by which Buyer's EBIT Company for such period. If the Company issues a number of such Mortgage Loans during such six-month period exceeds the Base EBITwith an aggregate outstanding principal balance (including Poolable Advances) of at least $659,389,000, if any, and (ii) with respect to the next 12 month period, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds Base EBIT ("Earn Out Payments"). Buyer will prepare the foregoing EBIT calculations and deliver the same Purchaser shall pay to Seller within forty-five $3,000,000 in cash in accordance with Section 3.5(b) below. 18 (45) b)No later than 30 days after the end of the twelve month period on which an Earn-Out Payment is based or the Closing occurs, whichever is later, Purchaser will deliver to Seller a notice (the “Earn-Out Notice”) setting forth Purchaser’s calculation of the outstanding principal balance (including Poolable Advances) of Mortgage Loans that were issued by the Company into GNMA HMBS pools for which they are required, together with a written certification that such calculations have been prepared and calculated in accordance herewith. Thereafter, Seller will conduct a review securitization of these items and notify Buyer not later than thirty (30) days after receipt of such calculations as to whether they are acceptable to SellerMortgage Loans for the applicable period. If Seller objects is entitled to such calculations and Buyer the Earn-Out Payment, Purchaser shall make the Earn-Out Payment within 10 Business Days after delivery of the Earn-Out Notice. If Seller is not entitled to the Earn-Out Payment, and Seller are able to resolve their dispute within fifteen (15) disagrees with the Purchaser’s calculation, Seller shall notify Purchaser no later than 15 days after Seller's objection, such calculations (reflecting the resolution) will become final Earn-Out Notice is delivered of its objections and binding on the partiesbasis therefor in reasonable detail. Failure of Seller to notify Purchaser of disagreement with the matters set forth in the Earn-Out Notice within 15 days after delivery of the Earn-Out Notice shall be deemed to be concurrence. If Buyer an objection is made, Purchaser and Seller will negotiate in good faith to reach an agreement regarding the matters in dispute. Purchaser shall provide Seller and its Affiliates and their authorized Representatives with reasonable access to the relevant books, records, facilities, employees and representatives of the Company reasonably requested by Seller to evaluate and assess the calculation of the Statements, in each case subject to the terms and conditions set forth in Section 6.2. If Seller and Purchaser are unable to resolve their such dispute within fifteen (15) days after Seller's objection30 days, the dispute will disputed item(s) shall be resolved by submitted to a neutral and impartial, nationally recognized certified public accounting firm. If the Independent Accountants. The Independent Accountants will be instructed report of such accounting firm concludes that Seller is entitled to perform their services the Earn-Out Payment, Purchaser shall make such payment within 10 Business Days of the issuance of the report, plus interest on such amount from the date the Earn-Out Payment would have originally been required to have been made up to but excluding the date on which such payment is made at a rate per annum equal to the Federal Funds Rate as expeditiously as possible of the Closing Date, calculated on the basis of a year of 360 days and the resolution actual number of days elapsed. Any payment under this Section 3.5(b) shall be made by federal funds wire transfer of immediately available funds to the account(s) of Seller, which account(s) shall be identified by Seller to Purchaser as soon as practicable following the determination of the Independent Accountants shall be final and binding on the parties. The fees and expenses amount of the Independent Accountants for Earn-Out Payment. (c)Purchaser shall cause the resolution of Company to operate in the dispute shall be shared by Buyer and Seller pre-Closing Ordinary Course, without accelerating or delaying or otherwise deviating in inverse proportion any material respect from the historical securitization practices prior to the respective amounts Closing Date, from the Closing Date through December 31, 2013. (d)For the avoidance of doubt and notwithstanding anything to the disputed matters which are resolved contrary in its favor. Within ten this Agreement, (10i) days after Purchaser shall have the right to set off the amount of any Earn Out Payment is finally determined payments owed to Seller pursuant to this Section 3.5 against any indemnification payment owed to a Purchaser Indemnified Party in accordance with the foregoing it shall be paid (i) by wire transfer of 75% of such amount in immediately available funds to an account designated in writing by Seller, and (ii) by issuance to Seller of shares of New Horizons Stock having an aggregate Fair Market Value equal to 25% of such amount. For purposes of this Article X. Section 3.3, "Fair Market Value" of a share of New Horizons Stock shall mean the average per share closing price of New Horizons Stock on the NASDAQ Stock Market (or successor exchange) for the thirty (30) full trading days ending on the last day of the twelve month period with respect to which such Earn Out Payment was earned. For purposes of this Section 3:3.6

Earn-Out. As additional consideration for the Purchased Assets, the Buyer will pay to Seller an earn-out over four (4) years of up to $1,000,000 in cash or stock of Buyer (payment in either cash or stock shall be entitled agreed to receive by both the Seller and Buyer at such time as the payment may be due), based on certain performance criteria set forth in Schedule 1.4 (i) with respect the “Earn-Out”), and subject to the 12 limitations and conditions contained herein. Within 60 days following the conclusion of each 12-month period commencing on (September 1, 2012, September 1, 2013, September 1, 2014 and September 1, 2015) , Buyer shall prepare financial statements showing EBITDA with the first day of the month on or after the Effective Date and ending on the last day of the twelfth month thereafter, an amount equal to three (3) times the amount by which Buyer's EBIT for earn-out above target in each such period exceeds (the Base EBIT“Earn-Out Statements”) and deliver them to Seller. Unless there is a disagreement (which shall be resolved as set forth below), Buyer shall promptly make the Earn-Out Payments, if any, and (ii) with respect in cash via wire transfers of funds to the next 12 month periodaccount of Seller in accordance with Seller’s instructions, an amount equal to three (3) times or by the amount by which Buyer's EBIT for issuance of stock should the parties agree that such period exceeds Base EBIT ("Earn Out Payments")payment shall be made in stock. Buyer will prepare the foregoing EBIT calculations and deliver the same to Seller within forty-five (45) days after the end Each of the twelve month period for which they are required, together with a written certification that such calculations have been prepared and calculated in accordance herewith. Thereafter, Seller will conduct a review of these items and notify Buyer not later than thirty (30) days after receipt of such calculations as to whether they are acceptable to Seller. If Seller objects to such calculations and Buyer and Seller are able to resolve their dispute within fifteen (15) days after Seller's objection, such calculations (reflecting the resolution) will become final and binding on the parties. If Buyer and Seller are unable to resolve their dispute within fifteen (15) days after Seller's objection, the dispute will be resolved by the Independent Accountants. The Independent Accountants will be instructed to perform their services as expeditiously as possible and the resolution of the Independent Accountants Earn-Out Statements shall be final and binding on upon the partiesparties hereto unless Seller shall notify Buyer in writing, not later than ten (10) days from Seller’s receipt of the Earn-Out Statement of a disagreement. Such notice of disagreement shall specify all items as to which there is disagreement, and provide an explanation of the basis for such disagreement. During the ten-day review period, Seller shall have full access to the appropriate Buyer books and records, and to the employees, representatives and agents of Buyer who prepared, or assisted in the preparation of, the Earn-Out Statement. Seller’s failure to timely notify Buyer in writing of the existence of a disagreement shall be deemed, for all purposes, Seller’s acceptance of the Earn-Out Statement. In the event and to the extent that Seller shall timely notify Buyer in writing of a disagreement with an Earn-Out Statement (the “Earn-Out Disagreement”), the parties hereto shall attempt, in good faith, to resolve such Earn-Out Disagreement. In the event that the parties are unable to resolve such Earn-Out Disagreement within ten business days from the date of receipt by Buyer of notice from Seller of the Earn-Out Disagreement, Buyer and Seller shall jointly select an independent public accounting firm to resolve the Earn-Out Disagreement (the “Accountants”). Each of Seller and Buyer shall submit to the Accountants its proposal to settle the Earn-Out Disagreement. Further, the parties shall submit to the Accountants all relevant financial data, and the Earn-Out Disagreement shall be submitted for final and binding arbitration and resolution before representatives of the Accountants. After completing their review of the Earn-Out Disagreement, the Accountants shall resolve each item in dispute and confirm their conclusion in writing to Seller and Buyer. The decision of the Accountants, which shall be confirmed in writing to Seller and Buyer, shall be final and binding upon the parties hereto for all purposes and enforceable in any court of competent jurisdiction. Within ten days following the decision of the Accountants, Buyer shall make the required payment (if any) to the Seller. The fees and expenses costs of the Independent Accountants for the resolution of the dispute Accountants, if any, in connection with such arbitration shall be shared by Seller and Buyer and Seller in inverse proportion to the respective relative amounts of the disputed matters which are resolved in its favor. Within ten (10) days after the amount of any Earn Out Payment is finally determined in accordance with the foregoing it shall to be paid (i) by wire transfer of 75% of such amount in immediately available funds to an account designated in writing by Seller, and (ii) by issuance to Seller of shares of New Horizons Stock having an aggregate Fair Market Value equal to 25% of such amount. For purposes of this Section 3.3, "Fair Market Value" of a share of New Horizons Stock shall mean the average per share closing price of New Horizons Stock on the NASDAQ Stock Market (or successor exchange) for the thirty (30) full trading days ending on the last day account of Seller and Buyer, respectively. Provided, however, each of the twelve month period with respect Earn-Out Statements may be subject to which such Earn Out Payment was earned. For purposes adjustment based upon the year end (December 31) fiscal audit of this Section 3:Buyer and its facilities by the independent accountants for Buyer.

Earn-Out. As additional consideration for (a) Subject to Section 7.13, Article 8 and the Purchased Assetsterms and conditions set forth in this Section 2.10, Seller shall be entitled Buyers will pay to receive (i) with respect to the 12 month period commencing CA Seller, on the first day behalf of the month on or Sellers, the 2015 Max Earn-Out Amount within five (5) Business Days after the Effective Date and ending on the last day of the twelfth month thereafterApril 1, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds the Base EBIT, if any, 2016 and (ii) with respect to CA Seller, on behalf of the next 12 month periodSellers, an amount equal to three the 2016 Max Earn-Out Amount within five (35) times Business Days after April 1, 2017 (collectively, the amount by which Buyer's EBIT for such period exceeds Base EBIT ("Earn Earn-Out PaymentsAmounts"). Buyer will prepare For purposes hereof, "2015 Max Earn-Out Amount" shall mean $9,000,000, "2016 Max Earn-Out Amount" shall mean $10,500,000. (b) Buyers shall have the foregoing EBIT calculations right to withhold and deliver the same set off against any amount due to Seller within forty-five (45) days after the end of the twelve month period for which they are required, together with a written certification that such calculations have been prepared and calculated in accordance herewith. Thereafter, Seller will conduct a review of these items and notify Buyer not later than thirty (30) days after receipt of such calculations as be paid pursuant to whether they are acceptable to Seller. If Seller objects to such calculations and Buyer and Seller are able to resolve their dispute within fifteen (15) days after Seller's objection, such calculations (reflecting the resolution) will become final and binding on the parties. If Buyer and Seller are unable to resolve their dispute within fifteen (15) days after Seller's objection, the dispute will be resolved by the Independent Accountants. The Independent Accountants will be instructed to perform their services as expeditiously as possible and the resolution of the Independent Accountants shall be final and binding on the parties. The fees and expenses of the Independent Accountants for the resolution of the dispute shall be shared by Buyer and Seller in inverse proportion to the respective amounts of the disputed matters which are resolved in its favor. Within ten (10) days after this Section 2.10 the amount of any Earn Out Payment is Damages to which any Buyer Indemnified Persons may be entitled under Article 8 hereof and which (for greater certainty) have been finally determined by a court of competent jurisdiction or mutually agreed between the Buyer Representative and the Seller Representative. (c) The Earn-Out Amounts will be allocated to goodwill in a manner consistent with the Tax Purchase Price Allocation in Section 2.5 and paid by the applicable Buyer to the appropriate Seller. (d) U.S. Tax Treatment of Earn-Out. (i) US Buyer and US Seller agree that the sale and purchase of the Acquired Assets pursuant to the terms of this Agreement represents a contingent payment sale with a stated maximum selling price as contemplated by Treasury Regulations Sections 15A.453-1(c)(1) - (2). As a result, any payment of the Earn-Out Amounts allocable to the Acquired Assets purchased by the US Buyer (each an "Installment Sale Payment") will constitute an installment sale for purposes of Code Section 453. (ii) In calculating the portion of each Installment Sale Payment that constitutes interest, each Buyer and each Seller agree that each applicable Buyer shall impute interest to the Installment Sale Payment by applying the mid-term applicable federal rate, as determined by Code Section 1274(d), for interest compounding annually for the month in which the Closing Date occurs, and shall in writing inform Seller Representative of the amount of the imputed interest in each tax year. (iii) Each Buyer and each Seller agree that, for United States federal income tax purposes, each Installment Sale Payment shall be treated as additional purchase price paid to or on account of such Seller for the Acquired Assets except to the extent a portion of an Installment Sale Payment constitutes interest for United States tax purposes pursuant to this Section 2.10(d). (e) Canadian Tax Treatment of Earn-Out. Earn-Out Amounts allocated to the Acquired Assets purchased by the CA Seller will be taxed in accordance with the foregoing it shall provisions of the ITA. To the extent any Earn-Out Amounts are subject to Canadian withholding tax under the ITA, subject to a reduction in the applicable rate of withholding tax under the Canada-U.S. Income Tax Convention, such withholding tax will be paid withheld from such Earn-Out Amounts and remitted to the Canadian government. (f) Forfeiture of Earn-Out Amounts. If Xxxxx Xxxxxx'x employment with RFE Holding (Canada) Corp. is (i) by wire transfer of 75% of terminated for Just Cause (as such amount term is defined in immediately available funds to an account designated in writing by Sellerhis Employment Agreement), and or (ii) if Xx. Xxxxxx terminates his employment without Good Reason (as such term is defined in his Employment Agreement), then Sellers shall forfeit all rights to the 2015 Max Earn-Out Amount and the 2016 Max Earn-Out Amount to the extent such amounts are not yet due. The Sellers will not forfeit any rights to the 2015 Max Earn-Out Amount or the 2016 Max Earn-Out Amount by issuance to Seller reason of shares of New Horizons Stock having an aggregate Fair Market Value equal to 25% of such amountXx. For purposes of this Xxxxxx'x (i) death or (ii) his disability or incapacitation." (e) Section 3.3, "Fair Market Value" of a share of New Horizons Stock shall mean the average per share closing price of New Horizons Stock on the NASDAQ Stock Market (or successor exchange) for the thirty (30) full trading days ending on the last day 7.13 of the twelve month period with respect Purchase Agreement is hereby amended and restated in its entirety to which such Earn Out Payment was earned. For purposes of this Section 3:read as follows: "7.13

Earn-Out. As additional consideration for the Purchased Assets, Seller shall be entitled to receive (ia) with respect to the 12 month period commencing on the first day of the month on or after the Effective Date April 1, 2001 and ending on the last day of the twelfth month thereafterMarch 31, 2002, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds the Base EBIT, if any, and (iib) with respect to the next 12 month periodperiod commencing on April 1, 2002 and ending on March 31, 2003, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds Base EBIT EBIT, if any, (the "Earn Out PaymentsEARN OUT PAYMENTS"). The period of time during which any Earn-Out Payment may be earned shall be extended by an amount of time equal to any period(s) of time during which, due to force majuxx, xxe Atlanta Business cannot be operated at substantially the same level of operation prior to the Closing. For purposes of this Section 3.3, the term "force majuxx" xxall mean any Act of God or other independent event beyond the control of the Atlanta Business which cannot be cured by the exercise of due care or the payment of money. Buyer will prepare the foregoing EBIT calculations and deliver the same to Seller within forty-five (45) days after the end of the twelve month period for which they are required, together with a written certification that such calculations have been prepared and calculated in accordance herewith. Thereafter, Seller will conduct a review of these items and notify Buyer not later than thirty (30) days after receipt of such calculations as to whether they are acceptable to Seller. If Seller objects to such calculations and Buyer and Seller are able to resolve their dispute within fifteen (15) days after Seller's objection, such calculations (reflecting the resolution) will become final and binding on the parties. If Buyer and Seller are unable to resolve their dispute within fifteen (15) days after Seller's objection, the dispute will be resolved by the Independent Accountants. The Independent Accountants will be instructed to perform their services as expeditiously as possible and the resolution of the Independent Accountants shall be final and binding on the parties. The fees and expenses of the Independent Accountants for the resolution of the dispute shall be shared by Buyer and Seller in inverse proportion to the respective amounts of the disputed matters which are resolved in its favor. Within ten (10) days after the amount of any Earn Out Payment is finally determined in accordance with the foregoing it shall be paid (i) by wire transfer of 75% of such amount in immediately available funds to an account designated in writing by Seller, and (ii) by issuance to Seller of shares of New Horizons Stock having an aggregate Fair Market Value equal to 25% of such amount. For purposes of this Section 3.3, "Fair Market Value" of a share of New Horizons Stock shall mean the average per share closing price of New Horizons Stock on the NASDAQ Stock Market (or successor exchange) for the thirty (30) full trading days ending on the last day of the twelve month period with respect to which such Earn Out Payment was earned. For purposes of this Section 3:dispute

Earn-Out. As additional consideration for the Purchased Assets, Seller shall be entitled to receive (i) with respect to the 12 month for a period commencing on of three years following the first day of the month on immediately following the Closing (the "Earn Out Period"), Buyer shall pay to the Escrow Agent or after the Effective Date and ending on the last day of the twelfth month thereafter, Seller (as set forth below) an amount equal to three 25% of the annual EBITDA generated by Buyer after the Closing (3whether Buyer is operating out of the Leased Real Property or otherwise) times from the amount by which Buyer's EBIT for such period exceeds Existing Suppliers up to a maximum of $300,000 per year (the Base EBIT, if any, and (ii) with respect to the next 12 month period, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds Base EBIT ("Earn Out Payments"). The amount of each Earn Out Payment shall be determined in accordance with GAAP and MTLM's reasonable standard accounting practices, consistently applied (it being understood that the calculation of EBIDTA for purposes of determining each Earn Out Payment shall include a reasonable allocation of certain general and administrative expenses incurred by Metal Management Northeast, Inc. but shall not include an allocation of any general and administrative expenses incurred by Metal Management, Inc.). The Earn Out Payments, if any, for the first two years of the Earn Out Period shall be paid by Buyer will prepare to the foregoing EBIT calculations and deliver Escrow Agent no later than the same to Seller within forty-five (45) days 45th day after the end of the twelve month period applicable one-year period. The Earn Out Payment for the third year of the Earn Out Period shall be paid as follows: (a) if at the end of the third year of the Earn Out Period Buyer has asserted a claim for indemnification pursuant to Section 12.3 which they are requiredhas not been resolved (and which claim is in excess of the amount then held in Escrow), together with then Buyer shall pay to (i) the Escrow Agent the amount of the Earn Out Payment, if any, that is necessary to cause the aggregate amount of the Escrow to equal $600,000 (if the aggregate amount of the Escrow is at such time less than $600,000) and (ii) Seller the remainder of the Earn Out Payment and (b) if at the end of the third year of the Earn Out Period Buyer has not asserted a written certification that such calculations have claim for indemnification pursuant to Section 12.3 which has not been prepared and calculated in accordance herewith. Thereafterresolved, Seller will conduct a review of these items and notify then Buyer not later than thirty (30) days after receipt of such calculations as to whether they are acceptable shall make the final Earn Out Payment directly to Seller. If The Earn Out Payments that are paid to the Escrow Agent shall be released from Escrow as and to the extent provided in the Escrow Agreement. Buyer shall provide Seller objects with reasonable access to such calculations those of its books and records which are relevant to the determination of the Earn Out Payments for the purpose of allowing Seller to verify the accuracy of Buyer's determination thereof. It is expressly understood that, subsequent to the Closing, Buyer shall in all respects have complete authority and control over the Business and its manner of operation, including the ability to close or sell all or any portion of the Business and operate the Business in Buyer's sole and absolute discretion without liability of any kind to Seller. Seller's right to receive Earn Out Payments pursuant to this Section 3.2 shall be subject to Buyer's authority, control, ability and discretion contemplated by the previous sentence. Buyer and Seller are able to resolve their dispute within fifteen (15) days after Seller's objection, such calculations (reflecting the resolution) will become final and binding on the parties. If Buyer and Seller are unable to resolve their dispute within fifteen (15) days after Seller's objection, the dispute will be resolved by the Independent Accountants. The Independent Accountants will be instructed to perform their services as expeditiously as possible and the resolution of the Independent Accountants its Affiliates shall be final and binding on under no obligation whatsoever to operate the parties. The fees and expenses of the Independent Accountants for the resolution of the dispute shall be shared by Buyer and Seller in inverse proportion Business subsequent to the respective amounts Closing in a manner that does not reduce or eliminate the possibility of the disputed matters which are resolved in its favor. Within ten (10) days after the amount Seller receiving all or any portion of any Earn Out Payment is finally determined in accordance with the foregoing it shall be paid (i) by wire transfer of 75% of such amount in immediately available funds to an account designated in writing by Seller, and (ii) by issuance to Seller of shares of New Horizons Stock having an aggregate Fair Market Value equal to 25% of such amount. For purposes of this Section 3.3, "Fair Market Value" of a share of New Horizons Stock shall mean the average per share closing price of New Horizons Stock on the NASDAQ Stock Market (or successor exchange) for the thirty (30) full trading days ending on the last day of the twelve month period with respect to which such Earn Out Payment was earned. For purposes of this Section 3:Payments.

Earn-Out. As additional consideration (a) No later than 45 days after the last day of Earn-Out Period, Buyer shall deliver to the Shareholders’ Representative a statement (the “Earn-Out Statement”) setting forth, for the Purchased AssetsEarn-Out Period, Seller the aggregate revenues attributable to the operation of the Post-Closing Business during the Earn-Out Period, net of brokerage, marketer’s, finder’s or similar third-party fees or commissions and costs or expenses historically deducted to compute net revenue as set forth on the Company’s Financial Statements (the “Earn-Out Revenue”). The Earn-Out Statement shall have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis as in the Audited Financial Statements (“GAAP”). If the Shareholders’ Representative disagrees with the Earn-Out Revenue as set forth on the Earn-Out Statement, the Shareholders’ Representative may, within 15 Business Days after receipt of the Earn-Out Statement, deliver a written notice (a “Notice of Earn-Out Disagreement”) to Buyer setting forth in reasonable detail the nature and amount of any disputed item. If Buyer does not receive a Notice of Earn-Out Disagreement within 15 Business Days after receipt by the Shareholders’ Representative of the Earn-Out Statement, the Earn-Out Revenue of the Company reflected therein shall be entitled conclusive and binding (absent manifest error or willful misrepresentation). In addition, any item not identified in the Notice of Earn-Out Disagreement as a disputed item as contemplated by this Section 3.10(a) shall be conclusive and binding (absent manifest error or willful misrepresentation). If Buyer receives a Notice of Earn-Out Disagreement from the Shareholders’ Representative within 15 Business Days after receipt by the Shareholders’ Representative of the Earn-Out Statement, Buyer and the Shareholders’ Representative shall use reasonable efforts to receive (i) resolve any differences that they may have with respect to the 12 month period commencing on the first day of the month on or after the Effective Date and ending on the last day of the twelfth month thereafter, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds the Base EBIT, if any, and (ii) with respect to the next 12 month period, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds Base EBIT ("Earn Out Payments"). Buyer will prepare the foregoing EBIT calculations and deliver the same to Seller within forty-five (45) days after the end of the twelve month period for which they are required, together with a written certification that such calculations have been prepared and calculated in accordance herewith. Thereafter, Seller will conduct a review of these items and notify Buyer not later than thirty (30) days after receipt of such calculations as to whether they are acceptable to Seller. If Seller objects to such calculations and Buyer and Seller are able to resolve their dispute within fifteen (15) days after Seller's objection, such calculations (reflecting the resolution) will become final and binding on the partiesmatters specified therein. If Buyer and Seller are unable the Shareholders’ Representative have not resolved all such matters as of the 10th Business Day after delivery by the Shareholders’ Representative of the Notice of Earn-Out Disagreement, Buyer and the Shareholders’ Representative shall jointly retain the Independent Accounting Firm to resolve their dispute within fifteen (15) days after Seller's objection, the dispute will be resolved by the Independent Accountants. The Independent Accountants will be instructed to perform their services as expeditiously as possible and the resolution of the Independent Accountants shall be final and binding on the parties. The fees and expenses of the Independent Accountants for the resolution of the dispute shall be shared by Buyer and Seller in inverse proportion to the respective amounts of the disputed matters which are resolved in its favor. Within ten (10) days after the amount of any Earn Out Payment is finally determined such remaining disagreement in accordance with the foregoing it shall be paid (i) by wire transfer of 75% of such amount in immediately available funds to an account designated in writing by Seller, and (ii) by issuance to Seller of shares of New Horizons Stock having an aggregate Fair Market Value equal to 25% of such amount. For purposes of this Section 3.3, "Fair Market Value" of a share of New Horizons Stock shall mean the average per share closing price of New Horizons Stock on the NASDAQ Stock Market (or successor exchange) for the thirty (30) full trading days ending on the last day of the twelve month period with respect to which such Earn Out Payment was earned. For purposes of this Section 3:3.10(c).

Earn-Out. As additional consideration for (a) No later than January 31, 2016, the Purchased Assets, Seller Buyer shall be entitled to receive (i) with respect deliver to the 12 month period commencing on Seller a statement (the first day “Calculation Statement”) setting forth the Buyer’s calculation of the month on or after 2015 Net Sales and the Effective Date and ending on the last day amount of the twelfth month thereafter, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds the Base EBIT, if any, and (ii) with respect Earn-out Payment payable to the next 12 month period, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds Base EBIT ("Earn Out Payments"). Buyer will prepare the foregoing EBIT calculations and deliver the same to Seller within forty-five (45) days after the end of the twelve month period for which they are required, together with a written certification that such calculations have been prepared and calculated in accordance herewithwith the formula set forth in Section 7.11(b), below. Thereafter, Seller will conduct a review of these items and notify Buyer not later than During the thirty (30) calendar day period following delivery of the Calculation Statement, the Buyer shall promptly furnish to the Seller such financial, operating and other data and information related to the preparation of the Calculation Statement and the calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment as the Seller may reasonably request. Within thirty (30) calendar days after receipt of the Calculation Statement from the Buyer, the Seller must notify the Buyer of any objections to the Buyer’s calculation of the 2015 Net Sales and the Base Earn-out Payment and the basis for such calculations as to whether they are acceptable to Sellerdisagreements. If the Seller objects does not so notify the Buyer within such thirty (30) calendar day period of the Seller’s objections to Buyer’s calculation of the 2015 Net Sales or the amount of the Base Earn-out Payment as set forth in the Calculation Statement, then the 2015 Net Sales and the amount of the Base Earn-out Payment as set forth in the Calculation Statement shall be final hereunder. If the Seller does notify the Buyer within such calculations and thirty (30) calendar day period that the Seller of its objection in accordance with this paragraph, then the Buyer and the Seller are able shall use their good faith efforts to attempt to resolve their dispute such disputed items within fifteen thirty (1530) calendar days after receipt by the Buyer of the Seller's objection, such calculations (reflecting the resolution) will become final and binding on the parties’s notice of dispute. If the Buyer and the Seller are unable to resolve their dispute the disputed items within fifteen thirty (1530) calendar days after Seller's objection, the dispute will be resolved receipt by the Independent AccountantsBuyer of the Seller’s notice of dispute, then the Buyer and the Seller shall jointly engage the Accounting Arbitrator (in accordance with the procedure for selecting the Accounting Arbitrator set forth in Section 2.2(b)) to resolve finally such disputed items. The Independent Accountants will scope of the Accounting Arbitrator’s engagement shall be instructed limited to perform their services as expeditiously as possible and the resolution of the Independent Accountants disputed items described in the Seller’s notice of dispute, in each case in accordance with GAAP, and the recalculation, if any, of the 2015 Net Sales and the amount of the Base Earn-out Payment in light of such resolution; provided, that the Accounting Arbitrator shall not assign a dollar amount to any item in dispute greater than the greatest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable), or lower than the lowest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable). The determination of the Accounting Arbitrator shall be made as promptly as possible and shall be final and binding upon the Parties, absent manifest error. The Buyer and the Seller shall each be permitted to submit such data and information relating to the unresolved disputed items described in the Seller’s notice of dispute to the Accounting Arbitrator as such party deems appropriate. The expenses and fees of the Accounting Arbitrator shall be paid by the Buyer, on the partiesone hand, and the Seller, on the other hand, based upon the percentage that the amount not actually awarded to such party bears to the amount actually contested by such party. The fees 2015 Net Sales and expenses of the Independent Accountants for the resolution of the dispute shall be shared by Buyer and Seller in inverse proportion to the respective amounts of the disputed matters which are resolved in its favor. Within ten (10) days after the amount of any Earn Out the Base Earn-out Payment is as finally agreed by the Buyer and the Seller or as determined in accordance with by the foregoing it Accounting Arbitrator as described herein shall be paid (i) by wire transfer of 75% of such the 2015 Net Sales and the amount in immediately available funds to an account designated in writing by Seller, and (ii) by issuance to Seller of shares of New Horizons Stock having an aggregate Fair Market Value equal to 25% of such amount. For purposes of this Section 3.3, "Fair Market Value" of a share of New Horizons Stock shall mean the average per share closing price of New Horizons Stock on the NASDAQ Stock Market (or successor exchange) for the thirty (30) full trading days ending on the last day of the twelve month period with respect to which such Earn Out Base Earn-out Payment was earned. For for all purposes of this Section 3:hereof.

Earn-Out. As additional consideration for the Purchased AssetsCompany Capital Stock, Seller Parent shall be pay certain earn-out amounts to those Stockholders who were entitled to receive a Closing Payment computed in accordance with, and subject to, the provisions of Schedule 2.09 (“Earn-Out Payments”) in accordance with their Applicable Percentages; provided, that (A) 45% of the portion of any Earn-Out Payment that is otherwise payable to the holders of Company Common Stock will be reduced (but not below zero) by the sum of (i) with respect any unpaid amounts owed to the 12 month period commencing on the first day of the month on or after the Effective Date and ending on the last day of the twelfth month thereafterParent pursuant to Section 2.08(f), an amount equal to three plus (3ii) times the amount by which Buyer's EBIT for such period exceeds of any indemnification payment owed to any Parent Indemnitees under Article VII that has not been paid from the Base EBITEscrow Fund, plus (iii) the amount, if any, by which any Unresolved Claim exceeds any associated Retained Amounts, and (iiB) with respect if the sum described in the preceding clause (A) exceeds 45% of the portion of such Earn-Out Payment that was otherwise payable to the next 12 month periodholders of Company Common Stock, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds Base EBIT ("Earn Out Payments"). Buyer will prepare the foregoing EBIT calculations and deliver the same to Seller within forty-five (45) days after the end % of the twelve month period for which they are required, together with a written certification portion of any Earn-Out Payment that such calculations have been prepared and calculated in accordance herewith. Thereafter, Seller will conduct a review is otherwise payable to the holders of these items and notify Buyer not later than thirty (30) days after receipt of such calculations as to whether they are acceptable to Seller. If Seller objects to such calculations and Buyer and Seller are able to resolve their dispute within fifteen (15) days after Seller's objection, such calculations (reflecting the resolution) will become final and binding on the parties. If Buyer and Seller are unable to resolve their dispute within fifteen (15) days after Seller's objection, the dispute Company Series A Preferred will be resolved reduced (but not below zero) by the Independent Accountants. The Independent Accountants will be instructed to perform their services as expeditiously as possible and the resolution of the Independent Accountants shall be final and binding on the parties. The fees and expenses of the Independent Accountants for the resolution of the dispute shall be shared by Buyer and Seller in inverse proportion to the respective amounts of the disputed matters which are resolved in its favor. Within ten (10) days after the amount of such excess. The aggregate dollar amount of funds retained under this Section 2.09 related to a properly asserted Unresolved Claim (each an “Earnout Holdback Amount”) shall be retained until Final Resolution of such Unresolved Claim, and upon such Final Resolution any Earn Out Payment is finally determined remaining balance of the Earnout Holdback Amount for such Unresolved Claim, after application of, first, any Retained Amounts and, second, any Earnout Holdback Amounts to satisfy any amounts required to be paid to Parent pursuant to Final Resolution of such Unresolved Claim (and in no case longer than five (5) Business Days from such Final Resolution), shall be promptly paid to the former holders of Company Capital Stock, in accordance with their Applicable Percentages, in each case less any amounts required by Law to be withheld or deducted; provided, however, upon any distribution of Retained Amounts or Earnout Holdback Amounts after Final Resolution of Unresolved Claims, the foregoing it former holders of Series A Preferred shall be paid (i) by wire transfer of 75receive 100% of such amount in immediately available funds to an account designated in writing by Seller, and (ii) by issuance to Seller of shares of New Horizons Stock having an aggregate Fair Market Value equal to 25% of such amount. For purposes of this Section 3.3, "Fair Market Value" of a share of New Horizons Stock shall mean the average per share closing price of New Horizons Stock on the NASDAQ Stock Market (or successor exchange) for the thirty (30) full trading days ending on the last day their Applicable Percentages of the twelve month period with respect Earnout Holdback Amount retained pursuant to which such Earn Out Payment was earned. For purposes clause (B) of this Section 3:the preceding sentence prior to any distribution of the Earnout Holdback Amount retained pursuant to clause (A) of the preceding sentence to the holders of Company Common Stock.

Earn-Out. As (a) Earn-Out Amount. Buyer shall make the following contingent earn-out payment to the Company as additional consideration for the Purchased Assets. The "Earn-Out Amount" shall equal the excess (if any) of the Net Sales (as herein defined) of Seller's products included in the Business (the "Sterion Products") by Buyer for the twelve (12) month period after the Closing Date (the "Earn-Out Period"), Seller over Seven Million Dollars ($7,000,000). For purposes of calculating the Earn-Out Amount, "Net Sales" shall be entitled to receive reduced by (i) sales to customers who have notified Seller prior to Closing that they have or will be terminating their contract or purchase relationship with respect Seller, (ii) usual and customary transfer taxes, freight, damage, discounts and returns (but not in an amount that exceeds one hundred five percent (105%) of Seller's historical return rate relating to the 12 month period commencing on products), (iii) any "bad debt" which comprised such sales which are written off in the first day of the month on ordinary course consistent with Seller's past practice, in each case calculated or after the Effective Date and ending on the last day of the twelfth month thereafter, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds the Base EBIT, if anyrecognized in accordance with GAAP, and (iiiv) sales of products which do not have a gross profit margin (calculated in accordance with respect GAAP) exceeding twenty percent (20%). Any such bad debt written off and then subsequently collected shall be added to the next 12 month periodNet Sales amount, an the earn-out payment amount equal shall be recalculated, and any additional resulting earn-out payment shall be added to three the balance of the Earn-Out Note (3) times the amount by which Buyer's EBIT for such period exceeds Base EBIT ("Earn Out Payments"as defined). Buyer will prepare the foregoing EBIT calculations and deliver the same to Seller within forty-five (45) days after As soon as reasonably practicable following the end of each calendar month during the twelve Earn-Out period, Buyer shall deliver to Seller a report of Net Sales for such month period (or portion thereof) and an itemization and explanation of any sales that are excluded from the Net Sales calculation for which they are required, such month. The Earn-Out Amount shall be payable pursuant to a promissory note in the form of Exhibit 1.3(a) (the "Earn-Out Note" and together with a written certification that such calculations have been prepared the Purchase Price Note, the "Notes"), which Earn-Out Note shall be executed and calculated in accordance herewith. Thereafter, delivered by Buyer to Seller will conduct a review of these items and notify Buyer not no later than thirty (30) days after receipt of such calculations as to whether they are acceptable to Seller. If Seller objects to such calculations and Buyer and Seller are able to resolve their dispute within fifteen (15) days months after Seller's objection, such calculations (reflecting the resolution) will become final and binding on the parties. If Buyer and Seller are unable to resolve their dispute within fifteen (15) days after Seller's objection, the dispute will be resolved by the Independent Accountants. The Independent Accountants will be instructed to perform their services as expeditiously as possible and the resolution of the Independent Accountants shall be final and binding on the parties. The fees and expenses of the Independent Accountants for the resolution of the dispute shall be shared by Buyer and Seller in inverse proportion to the respective amounts of the disputed matters which are resolved in its favor. Within ten (10) days after the amount of any Earn Out Payment is finally determined in accordance with the foregoing it shall be paid (i) by wire transfer of 75% of such amount in immediately available funds to an account designated in writing by Seller, and (ii) by issuance to Seller of shares of New Horizons Stock having an aggregate Fair Market Value equal to 25% of such amount. For purposes of this Section 3.3, "Fair Market Value" of a share of New Horizons Stock shall mean the average per share closing price of New Horizons Stock on the NASDAQ Stock Market (or successor exchange) for the thirty (30) full trading days ending on the last day of the twelve month period with respect to which such Earn Out Payment was earned. For purposes of this Section 3:Closing.