Common use of Earn-Out Clause in Contracts

Earn-Out. (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (ia) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring If prior to the Closing Date, (i) and prepared in accordance with GAAP. Buyer shall endeavor in good faith the Company has elected to deliver to protest the Representative the Statement of EBITDA by August 15, 2008, in the case March 2004 loss of the preceding clause Defense Advanced Research Projects Agency (x“DARPA”) Contract – solicitation number N00174-03-R-0044 (the “DARPA Contract”) through litigation or other administrative procedure (the “Protest”), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except such Protest has not been finally and non-appealably resolved as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement Closing Date and (iii) as a result of EBITDAsuch Protest the Company, or any of its successors or Affiliates, is, on or before the final and after completion non-appealable resolution of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDAProtest (“Earn-Out End Date”), that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** awarded a contract by DARPA (the “Required EBITDA AmountEarn-Out Contract”) for similar work as the DARPA Contract and for the same customer as the DARPA Contract, with such work being of at least the same value as the DARPA Contract, namely with an estimated total gross revenue during the term of the Earn-Out Contract of at least Thirty One Million Two Hundred Thirteen Thousand Eight Hundred Fifty Dollars ($31,213,850) (the “Target Earn-Out Contract Requirements”), then Buyer Purchaser shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount have an obligation (the “***% ThresholdEarn-Out Obligation”) to pay to the Sellers, within sixty (60) business days after the final and non-appealable award of the Earn-Out Contract to the Company, or any of its successors or Affiliates, (i) Five Hundred Thousand Dollars ($500,000) (the “Maximum Earn-Out Cash Payment”) and (ii) such number of shares of Purchaser Common Stock having a value of One Million Five Hundred Thousand Dollars ($1,500,000), with such value being determined in accordance with the Earn-Out Valuation (the “Maximum Earn-Out Purchaser Common Shares”) ((i) and (ii) together are referred to as the “Maximum Earn-Out Consideration”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion . In the event that the actual estimated total gross revenue during the term of the Earn Earn-Out payable in cash and Contract (the “Actual Earn-Out Contract Requirements”) is for a portion greater amount of estimated total gross revenue during the term of the Earn Earn-Out payable in shares of Buyer Common StockContract than the Target Earn-Out Contract Requirements, in each case, in Purchaser shall have an amount Earn-Out Obligation to the Sellers equal to the Maximum Earn-Out Consideration. In the event that the Actual Earn-Out Contract Requirements are for a lower amount of estimated total gross revenue during the term of the Earn-Out Contract than the Target Earn-Out Contract Requirements, Purchaser shall have a reduced Earn-Out Obligation to the Sellers (1the “Actual Earn-Out Consideration”) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, determined as follows: The Maximum Earn-Out Consideration shall be multiplied by (2) a fraction, where the numerator of which shall equal EBITDA for be the Measurement Period Actual Earn-Out Contract Requirements and the denominator shall equal be the Required EBITDA AmountTarget Earn-Out Contract Requirements, whereupon Buyer but in no event shall the Actual Earn-Out Consideration be greater than the Maximum Earn-Out Consideration. The Actual Earn-Out Consideration shall be paid (i) twenty five percent (25%) in cash (the “Actual Earn-Out Cash Payment”) and (ii) seventy five percent (75%) in shares of Purchaser Common Stock, with such value being determined in accordance with the Earn-Out Valuation (the “Actual Earn-Out Purchaser Common Shares”). In no event shall Purchaser be obligated to issue or deliver any fractional shares of Purchaser Common Stock. All obligations on Purchaser to issue and deliver Purchaser Common Stock shall be rounded down to the nearest whole number and Purchaser shall pay cash for what would have been an obligation to deliver a fractional share. In the event that Purchaser or the Company or any of their successors or Affiliates are awarded any contract by DARPA unrelated to the Protest, Purchaser shall have no further obligation to pay any remaining portion of the Earn Earn-Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect Obligation to the omitted portionsSellers. procedure described Any dispute between Purchaser and the Sellers regarding whether Purchaser shall or shall not have an Earn-Out Obligation to the Sellers shall be resolved by the Independent Accounting Firm in a similar manner as set forth in Section 3(e)(iv2.3(b) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) belowabove. (iiib) If Purchaser shall pay the Actual Earn-Out Consideration or the Maximum Earn-Out Consideration, as the case may be, as follows: (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all pro rata share of the Company’s assets Actual Earn-Out Cash Payment or the Maximum Earn-Out Cash Payment, as the case may be, applicable to a third party each Seller (other than as set forth on Schedule 2.2) shall be paid by wire transfer of immediately available funds to each Seller to an Affiliate of Buyer) (a “Sales Event”), account designated by him; and (B) it is determined, after completion stock certificates representing the pro rata share applicable to each Seller of an aggregate of the Statement of EBITDAActual Earn-Out Purchaser Common Shares or the Maximum Earn-Out Purchaser Common Shares, and after completion of as the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDAcase may be, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) issued and Buyer shall have no obligation under this Section 3(e)(iii) delivered to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared each Seller in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)Schedule 2.2. (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. 4.1 If a New Lease is completed at any time during the Earnout Period, then as soon as reasonably practicable thereafter the Purchaser shall notify Xxxx Xxxx in writing of the Additional Payment (the “Additional Payment Notice”) with respect to such New Lease (providing reasonable evidence for its calculation of the Additional Payment). If Xxxx Xxxx disputes the Additional Payment then it shall notify the Purchaser in writing within 15 Business Days of receipt of the Additional Payment Notice (and the aforementioned notice will be deemed to have been received in accordance with the provisions of Clause 33) stating the reasons for its disagreement in reasonable detail. Xxxx Xxxx and the Purchaser shall, acting reasonably and in good faith, seek to reconcile any differences but in the absence of such agreement either party may by notice to the other require that the Additional Payment be referred to the Expert and the provisions of Clauses 8.8-8.16 (inclusive) shall apply mutatis mutandis. If no notice is received from Xxxx Xxxx within the aforementioned 15 Business Day period disputing the Additional Payment, then Xxxx Xxxx shall be deemed to have accepted the Additional Payment with respect to such New Lease. 4.2 Any Additional Payment shall become due from the Purchaser to Xxxx Xxxx on the later of: (a) the date being 10 Business Days days after the Additional Payment Notice and when all of the Expenses relating to the Leased Area have been ascertained by the Purchaser (acting reasonably); (b) the date being 10 Business Days after the date upon which Xxxx Xxxx (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver has confirmed in writing to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (Purchaser that the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 Additional Payment is agreed; or (yii) in is deemed to have agreed the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event Additional Payment ; and (in each case, the “Measurement Period”c) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of referral to the preceding clause (x)Expert pursuant to Clause 4.1, and within 20 the date being 10 Business Days after the Sales Event, in the case determination of the preceding clause (y). Buyer shall also make available to Additional Payment by the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) belowExpert. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out 4.3 An Additional Payment shall be due in respect of each and Buyer shall have no obligation to pay all or any portion every New Lease, if more than one, granted during the Earnout Period provided it is not in respect of the Earn Out to Sellers, except as provided in Section 3(e)(iii) belowsame Leased Area. (iii) If (A) prior to June 304.4 For illustrative purposes only, 2008, Buyer sells the Company or all or substantially all a worked example of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion calculation of the Statement of EBITDA, and after completion of the time and procedure described Additional Payment is set out in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers8. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (ia) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event The amount to be paid (as hereinafter definedsubject to the terms and conditions of Sections 1.6(d), Buyer Section 1.7 and Section 1.9), by Purchaser on the Earn-Out Payment Date (the “Earn-Out Amount”) shall prepare and deliver to comprise the Representative a statement of EBITDA (Earn-Out Cash Payment as defined in Section 3(e)(v1.6(b) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data Earn-Out Stock Payment as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided defined in Section 3(e)(iv1.6(c) below. (iib) Except as provided in Section 3(e)(iiiThe Earn-Out Cash Payment shall be the cash amount (the “Earn-Out Cash Portion”) below in notified by the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior Purchaser to the Closing Sellers’ Representative in writing no later than 18:00 hours in Paris on the fourth Business Day before the Earn-Out Payment Date) is , provided that this amount shall be equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** forty percent (***40%) of the Required EBITDA Amount Earn-Out Calculation Amount. (c) The Earn-Out Stock Payment shall be equal to a number of shares of Purchaser Common Stock (the “***% ThresholdEarn-Out Stock Payment”)) determined by dividing (x) the Earn-Out Calculation Amount, then Buyer shall, subject to Buyer’s rights under Sections 2(bminus the Earn-Out Cash Portion and minus five percent (5%) and 15(f), promptly pay a portion of the Earn amount (if any) by which the Earn-Out payable in cash and a portion Cash Portion exceeds 40% (forty) percent of the Earn Earn-Out payable in shares of Buyer Common Stock, in each case, in an amount equal to Calculation Amount by (1y) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion average of the Earn Out to Sellers; and provided furtherclosing price of Purchaser shares as reported on the NASDAQ website, howeverover a period of twenty (20) consecutive trading days, that if it is determined, after completion of the Statement of EBITDA, and after completion of last day included in such period being the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(ivtrading day five (5) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring trading days prior to the Closing Date) is less than Earn-Out Payment Date (the ***% Threshold, then no Earn “Earn-Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) belowPurchaser Shares Price”). (iiid) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior The Earn-Out Calculation Amount shall be equal to the Closing Date) through the Business Day immediately preceding the closing date sum of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation Amount as they deem necessary or as the Independent Accountant requests, defined below and (ii) the Independent Accountant shall, within thirty Gross Profit Amount as defined below: (30i) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision The EBITDA Amount shall be final and binding on, and nonappealable byequal to: (1) nine million euros (€9,000,000) if Actual EBITDA is equal to or exceeds Budgeted EBITDA; or (2) nine million euros (€9,000,000) multiplied by a fraction, the Representative and Buyer. The fees and expenses numerator of the Independent Accountant which shall be paid oneActual EBITDA minus seven million four hundred forty thousand euros (€7,440,000) and the denominator of which shall be one million eight hundred sixty thousand euros (€1,860,000), if Actual EBITDA is equal to or exceeds eighty percent (80%) of Budgeted EBITDA and is below Budgeted EBITDA; or (3) zero if Actual EBITDA is less than eighty percent (80%) of Budgeted EBITDA. (ii) The Gross Profit Amount shall be equal to: (1) six million euros (€6,000,000) if Actual Gross Profit is equal to or exceeds Budgeted Gross Profit; or (2) six million euros (€6,000,000) multiplied by a fraction, the numerator of which shall be Actual Gross Profit minus nineteen million three hundred ninety-half by four thousand and four hundred euros (€19,394,400) and the Sellers denominator of which shall be four million eight hundred fourty-eight thousand and onesix hundred euros (€4,848,600), if Actual Gross Profit is equal to or exceeds eighty percent (80%) of Budgeted Gross Profit and is below Budgeted Gross Profit; or (3) zero if Actual Gross Profit is less than eighty per cent (80 %) of Budgeted Gross Profit. (e) Actual EBITDA shall mean the Company’s earnings before interest, taxes, depreciation and amortization, determined in accordance with US GAAP, for the period starting on January 1, 2006 and ending on December 31, 2006 (the “Earn-half by BuyerOut Period”); provided, howeverhowever (i) for clarification purposes, it is understood that if in determining Actual EBITDA, stock option-based compensation is excluded; (ii) Integration Costs shall be added back (positive EBITDA impact); (iii) the insertion, increase or decrease of a general reserve for uncollectible accounts receivable (it being understood that the applicable Measurement Period Company shall create such a general provision before the Closing Date in accordance with Purchaser’s accounting policies) shall be added back; (iv) in addition to writing off any accounts receivable as finally determined required by US GAAP, any accounts receivable of the Independent Account Company that are one hundred twenty (120) days past due shall be written off and set forth the resulting expense included in Actual EBITDA; and (v) the Settlement Amount Certificate (defined below) is closer amount by which any provisions for royalties to content providers and collecting societies and other licensors accrued prior to December 31, 2005 are decreased shall be excluded from the EBITDA calculation submitted by the Representative than to the calculation; (f) Budgeted EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees be nine million and expenses of the Independent Accountant. The decision of the Independent Accountant three hundred thousand euros (€9,300,000). (g) Actual Gross Profit shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from mean the Company’s financial statements used to produce Buyer’s financial statements filed gross profit, determined in accordance with the SEC Company’s past practices, which means revenues minus cost of sales, and for such purpose cost of sales includes without limitation the fiscal period(sfollowing: (i) covering the relevant Measurement Period. The decision sum of royalties paid or otherwise due to collecting societies, labels (“Droits d’auteurs et de reproduction”) or account number 6516 as defined in the Independent Accountant shall also include a certificate official French Chart of Accounts (“Plan Comptable Général”); (ii) variable royalties on patents, licences, brand, software and others (“Redevances pour brevets, licences, marques, logiciels et valeurs similaires”) or account numbered 6511 as defined in the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period official French Chart of Accounts (the “Settlement Amount CertificatePlan Comptable Général”). (vh) For purposes of this Section 3(eBudgeted Gross Profit shall be equal to twenty-four million two hundred forty-three thousand euros (€24,243,000), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (i) As soon as practicable after June 30In addition to the Closing Purchase Price, 2008, orthe earn-out amounts set forth below can be earned and shall be paid, if soonerearned, as soon as practicable after a Sales Event to Sellers. (as hereinafter defined), Buyer shall prepare and deliver a) Up to the Representative a statement an aggregate of EBITDA One Million Three Hundred Thirty Three Thousand Dollars (as defined in Section 3(e)(v) below$1,333,000) (the “Statement of EBITDAAnnual Maximum”) measured in U.S. dollars for (x) can be earned based on the AEBITDA of the Sellers’ Operations during each of the twelve (12) calendar months ending June 30, 2008 or month periods (y) in the event of each a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (ending June 30 of 2011 through and including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below2015. (iii) Except as provided in Section 3(e)(iii) below in If the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA AEBITDA for the any applicable Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the Target AEBITDA, then earn-out amount for such Measurement Period shall be equal to the Annual Maximum for such Measurement Period and such amount shall be deemed earned as of the expiration of such Measurement Period and be payable by Purchaser to Sellers as and when provided in Section 2.7(c) hereof. (ii) If the AEBITDA for any applicable U.S. dollar Measurement Period is less than the Target AEBITDA, then the earn-out amount set forth on Schedule 3(e)(iii) (for such Measurement Period shall be equal to (A) and the Annual Maximum for such Measurement Period, minus (B) beingthe amount by which the actual AEBITDA for such Measurement Period is less than the Target AEBITDA, collectivelyand such amount shall be deemed earned as of the expiration of such Measurement Period and be payable by Purchaser to Sellers as and when provided in Section 2.7(c) hereof. (iii) Subject to Section 2.7(b) hereof, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, AEBITDA for any applicable Measurement Period is zero or negative then no Earn Out earn-out amount for such Measurement Period shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all deemed earned or any portion of the Earn Out be payable by Purchasers to Sellers. (ivb) Buyer will deliver If the Annual Maximum is not earned for any of the first four (4) Measurement Periods, then up to Two Hundred Sixty Six Thousand Dollars ($266,000) of the amount not earned may be recaptured (the “Recapture Maximum”) to the Representative extent that the AEBITDA in the immediately subsequent Measurement Period is greater than the Target AEBITDA, in which case, the amount of the recapture earn-out shall be equal to the amount that the applicable AEBITDA exceeds the Target AEBITDA on a quarterly statement dollar for dollar basis, up to the Recapture Maximum for such immediately subsequent Measurement Period. Similarly, if the Annual Maximum is not earned in any of EBITDA the final four (4) Measurement Periods, then up to Two Hundred Sixty Six Thousand Dollars ($266,000) of the amount not earned may carried forward (the “Carry-forward Maximum”) to the extent that the AEBITDA in the immediately prior Measurement Period is greater than the Target AEBITDA, in which case, the amount of the carry forward earn-out shall be equal to the amount that the applicable AEBITDA exceeded the Target AEBITDA in the prior period on a dollar for dollar basis, up to the Carry-forward Maximum for such immediately prior Measurement Period. Any such recapture earn-out amount or carry-forward earn-out amount for any applicable Measurement Period shall be in addition to any earn-out amount earned by Sellers pursuant to Section 2.7(a)(i) hereof for such applicable Measurement Period and shall be payable by Purchaser to Sellers as and when provided in Section 2.7(c)If the Annual Maximum is not earned for any of the first four (4) Measurement Periods, then up to Two Hundred Sixty Six Thousand Dollars ($266,000) of the amount not earned may be recaptured (the “Recapture Maximum”) to the extent that the AEBITDA in the subsequent Measurement Period is greater than the Target AEBITDA, in which case, the amount of the recapture earn-out shall be equal to the amount that the applicable AEBITDA exceeds the Target AEBITDA on a dollar for dollar basis, up to the Recapture Maximum for such Measurement Period. Any such recapture earn-out amount for any Measurement Period shall be in addition to any earn-out amount earned by Sellers pursuant to Section 2.7(a)(i) hereof for such Measurement Period and shall be payable by Purchaser to Sellers as and when provided in Section 2.7(c) hereof. Notwithstanding the foregoing, in no event shall the total aggregate recapture earn-out and/or carry-forward earn-out for all measurement periods exceed Two Hundred Sixty Six Thousand Dollars ($266,000). By way of illustration only, if AEBITDA (x) for the Company prepared first Measurement Period is $100,000 less than the Target AEBITDA, (y) for the second Measurement Period exceeds the Target AEBITDA by $350,000, and (z) for the third Measurement Period is $200,000 less than the Target AEBITDA, then Sellers shall be entitled to the following: for the first Measurement Period, the Annual Maximum earn-out, less $100,000 (i.e., a dollar for dollar reduction by the amount that the actual AEBITDA for the first Measurement Period is less than the Target AEBITDA); for second Measurement Period, the Annual Maximum earn-out, plus a recapture earn-out of $100,000 (i.e., a dollar for dollar recapture (up to the maximum aggregate recapture and carry-forward earn-out amount for all Measurement Periods of $266,000) by the amount that the AEBITDA for the second Measurement Period exceeded the Target AEBITDA as a recapture for the first Measurement Period by the amount that the Annual Maximum was not earned for the first Measurement Period); and for the third Measurement Period, the Annual Maximum earn-out, less $200,000 (i.e., a dollar for dollar reduction by the amount that the actual AEBITDA for the third Measurement Period was less than the Target AEBITDA), plus a carry-forward earn-out amount of $166,000 (i.e., a dollar for dollar carry-forward (up to the maximum aggregate recapture and carry-forward earn-out for all Measurement Periods amount of $266,000) by the amount that the AEBITDA for the second Measurement Period exceeded the Target AEBITDA as a carry-forward for the third Measurement Period by the amount that the Annual Maximum was not earned for the third Measurement Period, but limited so that the total aggregate recapture earn-out paid for the first Measurement Period and the carry-forward earn-out for the third Measurement Period does not exceed $266,000.00). (c) Except as expressly provided in accordance Section 2.7(b) hereof, each earn-out amount (and/or recapture or carry-forward earn-out amounts) for each Measurement Period will stand alone and shall be achieved, if at all, and be calculated separately based upon the AEBITDA for such Measurement Period. Each earn-out amount earned by Sellers for any Measurement Period pursuant to Section 2.7(a) hereof, together with GAAP any recapture or carry-forward earn-out amounts earned by Sellers for such Measurement Period pursuant to Section 2.7(b) hereof, shall be paid by Purchaser to Sellers within thirty sixty (3060) days after the end of each of applicable Measurement Period ends (except that the first three fiscal quarters during for the last Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative such payment shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained be made within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant expiration of the Medicare Cap Year immediately following such Measurement Period, or such earlier date as Purchaser and Sellers may mutually agree) (each, an “Earn-Out Payment Date”) by wire transfer to the accounts set forth on Schedule 2.7(c), and the allocation such earn-out amounts among Sellers shall be in accordance with Schedule 2.3 regardless of the amount that each Seller’s former Operations contributed to the AEBITDA. Sellers acknowledge and agree that the achievement of any earn-out amounts pursuant to this Section 2.7 is retained their respective positions contingent upon the AEBITDA with respect to Seller’s Operations as a whole after the Statement Closing Date and neither Purchaser nor its Representatives is guaranteeing that any level of EBITDA and their respective AEBITDA will be achieved or that any of the earn-out amounts will be earned by Sellers. (d) On or before each applicable Earn-Out Payment Date, Purchaser shall deliver Sellers’ Representative a written notice stating the amount, if any, of the applicable earn-out amount deemed earned during any applicable Measurement Period as determined by Purchaser (each an “Earn-Out Notice”), together with a reasonably detailed calculation of EBITDA AEBITDA for the applicable Measurement Period. In the event Sellers’ Representative objects to any earn-out amount set forth an Earn-Out Notice, together with Sellers’ Representative must deliver to Purchaser within fifteen (15) days of the date of such supporting documentation as they deem necessary or as Earn-Out Notice a written notice setting forth the Independent Accountant requestsbasis for such objections (an “Objection Notice”). If Sellers’ Representative delivers an Objection Notice, Purchaser and (ii) Sellers shall attempt in good faith to agree upon the Independent Accountant applicable earn-out amount. If Purchaser and Sellers so agree in writing to the applicable earn-out amount, Purchaser shall, within thirty five (305) business days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as reaching such agreement pay to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and BuyerSellers any additional amounts agreed upon. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; providedIf, however, that if EBITDA for no agreement is reached after good-faith negotiations, either Purchaser or Sellers may demand arbitration of the applicable Measurement Period as finally determined dispute and the matters shall be resolved by confidential arbitration conducted by three independent arbitrators, one selected by Purchaser, one selected by Sellers, and the third (who must be independent of the parties hereto) selected jointly by the Independent Account two arbitrators previously so selected. All arbitrators must be members of the CPR National Panel or CPR California Panel. The arbitrators shall set a limited time period and set forth establish procedures designed to reduce the cost and time for discovery of information relating to any dispute while allowing the parties an opportunity, adequate as determined in the Settlement Amount Certificate (defined below) is closer sole judgment of the arbitrators, to discover relevant information from the opposing parties about the subject matter of the dispute. The arbitrators shall rule upon motions to compel, limit or allow discovery as they shall deem appropriate given the nature and extent of the disputed claim. The arbitrators shall also have the authority to impose sanctions, including attorneys’ fees and other costs incurred by the parties, to the EBITDA calculation submitted same extent as a court of law or equity, if the arbitrators determine that discovery was sought without substantial justification or that discovery was refused or objected to by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountanta party without substantial justification. The decision of a majority of the Independent Accountant three arbitrators as to the earn-out amount related to the applicable Earn-Out Notice shall take into consideration be binding and conclusive upon the respective positions parties. Such decision shall be written and supporting documentation submitted shall be supported by written findings of fact and conclusions of law regarding the dispute, which shall set forth the award, judgment, decree or order of the arbitrators. Judgment upon any award, judgment, decree or order rendered by the Representative arbitrators may be entered in any court having competent jurisdiction. Any such arbitration shall be held in the City and Buyer pursuant County of Orange, California under the CPR Rules for Non-Administered Arbitration then currently in effect. The non-prevailing party (as determined by the arbitrators) to any arbitration under this Section 2.7 shall pay its own expenses, the fees of each arbitrator, the administrative costs of the arbitration and the expenses, including reasonable attorneys’ fees and costs, incurred by the other party to the preceding clause arbitration. Purchaser shall pay to Seller the amount of any additional earn-out amount deemed earned by the arbitrators within five (i5) business days of notice of the arbitrators decision. If Sellers are the determined to be the non-prevailing party, Purchaser may deduct the fees of the arbitrators, the administrative costs of the arbitration and the expenses, including reasonable attorney’s fees and costs, incurred by Purchaser out any amounts then owing to Sellers hereunder prior to payment of such amounts to Sellers. Any remaining amounts owing by Sellers to Purchaser on account of the fees of the arbitrators, the administrative costs of the arbitration and the expenses, including reasonable attorney’s fees and costs, incurred by Purchaser, after any such deduction of amounts then owing by Purchaser to Sellers hereunder (if applicable), but shall ultimately be derived solely from the Company’s financial statements used paid by Sellers to produce Buyer’s financial statements filed with the SEC for the fiscal period(sPurchaser within five (5) covering the relevant Measurement Period. The decision business days of notice of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)arbitrators decision. (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (ia) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver Subject to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (following terms and conditions, Parent shall make the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portionfollowing payments, if any, of the Measurement Period occurring prior to the Closing Date) and prepared Exchange Agent (for distribution to the Company Members in accordance with GAAP. Buyer their respective Pro Rata Percentages) (collectively, the “Earn-Out Payments”): (i) An amount of up to $25 million (the “Gross Profit Earn-Out”) shall endeavor be payable as follows: (A) An amount up to $12.5 million in good faith the aggregate (the “GP Earn-Out”) shall be payable as follows: if during the first 24 months starting on the first day of the month following the month in which the Closing occurs (the “Gross Profit Earn-Out Period”), the Gross Profit generated by the Novitium Portfolio minus Required CapEx is greater than or equal to deliver $95 million, Parent will pay an amount, not to exceed $12.5 million, calculated by multiplying $12.5 million by a fraction, (i) the Representative numerator of which is the Statement amount by which (A) the Gross Profit generated during the Gross Profit Earn-Out Period minus Required CapEx made during the Gross Profit Earn-Out Period exceeds (B) $80 million, and (ii) the denominator of EBITDA by August 15, 2008which is $25 million; and (B) An amount equal to $12.5 million (the “ANDA Filing Earn-Out”) if the Company makes all of the FDA Filings during the Gross Profit Earn-Out Period with respect to all of the Existing Pipeline ANDAs (which list shall be subject to adjustment both prior to and following the Closing upon mutual agreement of Parent and the Key Persons); provided, in the case of the preceding clause each of clauses (xA) and (B), that the annualized R&D expenses of the Company in respect of the Novitium Portfolio and the Existing Pipeline ANDAs relevant to the calculation of the Gross Profit Earn-Out do not exceed $16 million per year for each year during the Gross Profit Earn-Out Period (“R&D Expenses”); and/or (ii) Another amount up to $21.5 million (the “505(b)(2) Earn-Out”) shall be payable as follows: Out of the Net Profit generated by the 505(b)(2) Products, the Company Members shall receive 20%, payable on a quarterly basis until the earlier to occur of (i) the sum of all such payments being equal to $21.5 million in the aggregate and (ii) the tenth anniversary of FDA Approval of the applicable 505(b)(2) Product. (b) In respect of the Gross Profit Earn-Out, within 20 Business Days sixty (60) calendar days after the Sales Event, in the case expiration of (i) each full twelve months period of the preceding clause Gross Profit Earn-Out Period and (yii) the Gross Profit Earn-Out Period, Parent shall provide the Equityholders’ Representative with a statement setting forth Parent’s calculation of the Gross Profit, Required CapEx and the R&D Expenses. In respect of the 505(b)(2) Earn-Out, within forty-five (45) calendar days after the end of each quarter during which the 505(b)(2) Earn-Out can be earned in accordance with its terms, Parent shall provide the Equityholders’ Representative with a statement setting forth Parent’s calculation of Net Profit generated by the 505(b)(2) Products in respect of such quarter (it being understood and agreed that the first quarter in respect of which Parent shall provide such statement shall be the quarter following the quarter in which the Closing occurs, provided that such statement shall cover the entire period from and after the Closing Date through the end of such quarter following the quarter in which the Closing occurs). Buyer shall also make available to Within forty-five (45) calendar days of receipt of any of the Representative copies of all work papers and other documents and data as was used to calculate foregoing statements, the Statement of EBITDA. The Equityholders’ Representative shall have the right to dispute such calculations, and the Statement provisions of EBITDA Section 1.9(c) and (d) shall apply mutatis mutandis. Parent shall make, or cause to be made, the applicable Earn-Out Payment to the Exchange Agent for distribution to the Company Members in accordance with their respective Pro Rata Percentages within seven (7) calendar days upon final determination of (i) in the case of Section 1.12(a)(i)(A), the final determination the Gross Profit, Required CapEx and any items thereinthe R&D Expenses, (ii) as provided in the case of Section 3(e)(iv1.12(a)(i)(B), the making of the last outstanding FDA Filing and the related final determination of the R&D Expenses, and (iii) belowin the case of the 505(b)(2) Earn-Out, the final determination of Net Profit in respect of the applicable quarter, such final determination each in accordance with the provisions of Section 1.9(c) and (d), applied mutatis mutandis. (iic) Except as provided in Section 3(e)(iiiParent’s obligation to make any Earn-Out Payment is an independent obligation, and the obligation to pay any of the Gross Profit Earn-Out or the 505(b)(2) below in Earn-Out shall not obligate Parent to make the event of respective other Earn-Out Payment or any portion thereof. (d) If a Sales Event Key Person is terminated by Parent or its Subsidiaries without Cause (as hereinafter defineddefined in such Key Person’s Employment Agreement) prior to June 30or resigns from Parent or its Subsidiaries for Good Reason (as defined in such Key Person’s Employment Agreement), 2008in each case, if it is determined, after completion of following the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring Closing but prior to the Closing Dateend of the Gross Profit Earn-Out Period, such Key Person’s pro rata portion (determined (i) if such Key Person is equal a Principal Member in his individual capacity, by reference to the Pro Rata Percentage of such Principal Member, (ii) if such Key Person is (or greater than ****************************** ********** is also) a direct or indirect holder of Equity Interests in a Principal Member, by multiplying (A) the “Required EBITDA Amount”)Pro Rata Percentage of the Principal Member of which such Key Person owns Equity Interests by (B) a fraction, then Buyer shall promptly pay the Earn Out numerator of which is the number of Equity Interests directly or indirectly held by such Key Person in such Principal Member and the denominator of which is the sum of all outstanding Equity Interests of such Principal Member or (iii) if such Key Person is both a Principal Member in his individual capacity and the direct or indirect owner of Equity Interests in a Principal Member, by adding together the Pro Rata Percentages calculated pursuant to Sellers, subject to Buyer’s rights under Sections 2(bsubclauses (i) and 15(f)(ii) above) of any Gross Profit Earn-Out that has not yet been earned and/or paid shall become payable in full by Parent to the Principal Member (in the case of a Key Person that is a Principal Member in his individual capacity) and/or, as applicable, the Principal Member of which such Key Person directly or indirectly owns Equity Interests for distribution to such Key Person in accordance with the foregoing parenthetical. (e) Each Company Member acknowledges the absolute right of Parent, the Company and their respective Subsidiaries (and the right of the respective directors and officers of any of the foregoing) to operate, manage and invest in the respective business of Parent, the Company or any of their respective Subsidiaries in the exercise of their sole discretion, and agree that Parent, the Company and their respective Subsidiaries shall, from and after the consummation of the Closing, have no liability or obligation or fiduciary duty to any of the Company Members with respect to (i) any Earn-Out Payment in connection with their operation of the business of Parent, the Company or any of their respective Subsidiaries or (ii) the achievement or maximization of any Earn-Out Payment; provided, however, that if it is determined, after completion that: (i) in respect of the Statement ANDA Filing Earn-Out, Parent will cause the Company to expend in accordance with Parent’s instructions up to the full $16 million per year of EBITDAR&D Expenses and shall not, and after completion in connection therewith, take any action (or omit to take any action) the principal purpose of which is to frustrate the time and procedure described in Section 3(e)(iv) below if Representative disputes ability to achieve the Statement of EBITDAANDA Filing Earn-Out; provided, that EBITDA for the Measurement Period (including the portionfurther, that, if anyParent chooses to instruct the Company to expend more than $16 million per year of R&D Expenses, of Parent shall not be relieved from its obligation to pay the Measurement Period occurring prior to ANDA Filing Earn-Out (if the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts conditions set forth in Sections 2(a)(ii)(ASection 1.12(a)(i)(B) are otherwise satisfied); and (ii) in respect of the GP Earn-Out, (A) Parent shall, and 2(a)(ii)(B)shall cause the Company to, respectivelyuse efforts and resources consistent with the past practice of Parent related to the development, multiplied approval, manufacture or commercialization of pharmaceutical products that are similarly situated and at a similar stage of development or commercialization as the Novitium Portfolio (and of similar market or profit potential and strategic value, based on conditions then prevailing) that are owned (and not licensed) by Parent and (2B) a fractionif Parent chooses to instruct the Company to expend more than $16 million per year of R&D Expenses, where the numerator Parent shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further not be relieved from its obligation to pay any remaining portion of the Earn GP Earn-Out to Sellers; and provided further, however, that (if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described conditions set forth in Section 3(e)(iv1.12(a)(i)(A) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below.are otherwise satisfied); and (iii) If (Ain respect of the 505(b)(2) prior to June 30Earn-Out, 2008, Buyer sells none of Parent or the Company shall take any action the principal purpose of which is to frustrate the ability to achieve the payments contemplated thereby. (f) No Company Member shall have the right to transfer or assign (whether by operation of law, in connection with any sale, assignment or other transfer of any securities or otherwise) any interest or right he or she may have in or to receive or participate in any portion of any Earn-Out Payment and any attempt to do so shall be void. The Earn-Out Payments and the provisions of Section 1.12 relating to the Earn-Out Payments are intended solely for the benefit of the Company Members, and the right (if any) to receive distributions in connection with the Earn-Out Payment shall be personal to those Persons. Notwithstanding the foregoing, a Company Member may transfer such rights (i) in the case of a Company Member that is an entity, to such Company Member’s successors or a transferee of all or substantially all of the Companysuch Company Member’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) in the Independent Accountant shallcase of a Company Member that is a natural person, within thirty (30) days after receiving the positions if such transfer is made for bona fide estate planning purposes, either during his or her lifetime or on death by will or intestacy to such natural person’s estate, spouse, children, ancestors or any descendants of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyerany ancestors; provided, howeverthat each such transfer shall comply with applicable securities laws and, that if EBITDA for the assuming such transfer is permitted by applicable Measurement Period as finally determined by the Independent Account securities laws, each such transferee shall make appropriate securities laws representations and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer warranties pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used an instrument of assignment and assumption reasonably satisfactory to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)Parent. (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. 4.1 Subject to clause 4.2, at the end of the Earn Out Period the Buyer shall pay to the LLP Sellers the Earn Out Amount in accordance with clause 4.3. 4.2 The Earn Out Amount shall be payable by the Buyer to the LLP Sellers if, during the Earn Out Period, the Aggregate JCA Revenue equals or is greater than the Target Earn Out Revenue. 4.3 The Earn Out Amount shall be paid by the Buyer by the later of (i) As soon 90 days of the end of the Earn Out Period and (ii) ten Business Days after the date on which the Aggregate JCA Revenue has become final and binding in accordance with the procedure in this clause 4, subject to the terms and conditions of this clause 4, by electronic transfer for same day value (‘Earn Out Payment’) to each of the LLP Sellers in the proportions set out in column (4) of his or her Consideration Schedule. For the avoidance of doubt, the Buyers may make the Earn Out Payment to the Sellers Solicitors’ Bank Account whose written confirmation of receipt shall be sufficient discharge to the Buyer, and the Buyer shall have no duty in connection with the manner in which the Earn Out Amount is allocated among the Sellers or applied in any particular way. 4.4 If at the date upon which the Earn Out Payment would otherwise be payable by the Buyer pursuant to this clause 4 any amount, which has been agreed or determined by a court of competent jurisdiction from which there is no right of appeal to be payable to the Buyer by an LLP Seller pursuant to this Agreement or the Tax Deed or the Specific Covenant for Tax, remains unpaid, then the Buyer shall be entitled to withhold from the Earn Out Payment due to the defaulting LLP Seller an amount up to such unpaid amount. Any amount so withheld shall be applied in settlement (in whole or in part) of the amount due to the Buyer, and shall be deemed to be deducted from the amount of the Earn Out Payment due to the relevant LLP Seller. 4.5 If at the date upon which an Earn Out Payment would otherwise be payable by the Buyer pursuant to this clause 4 there are Unresolved Claims pursuant to this Agreement or the Tax Deed or the Specific Covenant for Tax, including any Claim, the Buyer shall be entitled to withhold from the Earn Out Payment due to the defaulting LLP Seller an amount (a ‘Retained Amount’) equal to the lesser of (i) the amount of the Earn Out Payment otherwise due to that LLP Seller and (ii) the amount of such Unresolved Claim; provided that following final agreement or determination of such Unresolved Claim (whether by a binding settlement or a judgement or arbitration award to which there is no further appeal) then to the extent that the amount of the Earn Out Payment withheld by the Buyer exceeds the amount agreed or determined to be due to the Buyer in respect of the Unresolved Claim, the Buyer shall promptly pay such excess to the relevant LLP Seller (by payment to the Sellers’ Solicitors). In the event that the Buyer agrees with the Sellers that it will not pursue any claim in respect of which any Retained Amount has been withheld, the Buyer shall pay to the relevant LLP Seller (by payment to the Sellers’ Solicitors) the full amount of the Retained Amount in respect of such claim promptly following such agreement. Any Retained Amount shall be deemed to be deducted from the amount of the Earn Out Payment due to the relevant LLP Seller. 4.6 If before an Earn Out Payment is due to be paid the Buyer and an LLP Seller shall not have reached agreement as practicable after June 30to the amount which may be retained pursuant to clause 4.5 in respect of any Claim, 2008, orthen the question of the amount which may be retained (including the amount of the Buyer’s costs and expenses which are likely to be determined to be payable by the LLP Seller) may be referred by either the Buyer or the LLP Sellers to an independent counsel of appropriate experience and standing to be appointed by the Buyer and the LLP Sellers or (in default of agreement within five Business Days of any proposal for the appointment of such counsel) by the chairman for the time being of the Council of the Bar on the application of either the Buyer or the LLP Sellers; and the decision of such counsel (who shall be deemed to be acting as an expert and not as an arbitrator) shall be final and binding on the parties and the cost of such reference shall be paid by the Buyer and the LLP Sellers in equal shares or in such other proportions as such counsel shall determine. An amount determined by counsel pursuant to this clause 4.6 shall be a “Unresolved Claim”. In relation to a determination to be made under this clause 4.6: (a) the Buyer and the Warrantors shall procure that the counsel appointed is provided with all information reasonably required by him for the purpose of making his determination; and (b) such counsel shall allow each of the Buyer and the Warrantors an opportunity to make written representations to him but so that all such representations must be made within 14 days of his appointment . 4.7 During the Earn Out Period, if soonerthe ability of the LLP Sellers to achieve the Target Earn Out Revenue, whether individually or collectively is restricted by any member of the Buyer Group agreeing or having previously agreed a placement fee of less than 30 per cent of the first year salary, bonus, benefits, and signing on bonus with a client, which the LLP Seller is subsequently obliged to observe, the difference between the actual fee the LLP Seller would ordinarily charge the client prior to the placement fee adjustment shall be added to the Target Earn Out Revenue. For the avoidance of doubt, the provisions of this clause 4.7 shall not apply in relation to placement fees below 30 per cent of the first year salary, bonus, benefits, and signing on bonus which have been agreed (i) by the Buyer Group prior to the date of this Agreement or (ii) by the Buyer Group together with the LLP Sellers, at the request of a client and/or potential client, following the date of this Agreement. 4.8 If a LLP Seller dies at any time during the Earn Out Period the LLP Seller and her estate shall continue to be entitled to be paid her proportion of the Earn Out Amount, as soon as practicable after a Sales Event set out in column (as hereinafter defined), 4) of his or her Consideration Schedule. 4.9 The Buyer shall within 45 Business Days after the end of the Earn Out Period prepare and deliver to the LLP Sellers’ Representative a statement of EBITDA the Aggregate JCA Revenue (as defined in Section 3(e)(vwhich shall include a breakdown by LLP Seller and JCA Employee) below) and based on that a calculation of the Earn Out Amount (the “‘Earn Out Statement’). The LLP Sellers’ Representative shall by the fifth Business Day after receipt of the Earn Out Statement, send the Buyer an acknowledgement of receipt. If the LLP Sellers’ Representative fails to issue an acknowledgement of receipt by such time then the Sellers shall, for the purposes of this clause 4.9 be deemed to have issued an acknowledgement of receipt on the fifth Business Day after it receives the Earn Out Statement. 4.10 If within 15 Business Days following receipt of the acknowledgment of an Earn Out Statement of EBITDA”) measured in U.S. dollars for (x) by the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008LLP Sellers’ Representative, the period from and after July 1, 2007, through LLP Sellers’ Representative has not given the Business Day immediately preceding Buyer written notice of her objection to the closing date of such Sales Event Earn Out Statement (which notice shall state in each case, detail the “Measurement Period”) (including the portion, if any, basis of the Measurement Period occurring prior Sellers’ objection) then the Earn Out Statement shall be binding and conclusive on the parties. 4.11 If the LLP Sellers’ Representative gives the Buyer written notice of the Sellers’ objection to an Earn Out Statement within 15 Business Days following acknowledgement of receipt of an Earn Out Statement by the LLP Sellers’ Representative and if the LLP Sellers’ Representative and the Buyer fail to resolve the issues outstanding with respect to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case determination of the preceding clause (x), and Earn Out Statement within 20 15 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement LLP Sellers’ Representative’s notice of EBITDA objection either the LLP Sellers’ Representative or the Buyer may at any time after that date refer the matter or matters in dispute to review such statement. If independent firm of chartered accountants as they shall agree or, in default of agreement within 10 days of any proposal for the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration appointment of such 30-day period. Buyer accountants, as shall be appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales on the application of either the LLP Sellers’ Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for Buyer. 4.12 The independent firm of chartered accountants referred to in clause 4.11 shall determine the benefit of all the parties hereto an independent accounting firm nationally recognized matter or matters in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing dispute acting as experts not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA as arbitrators and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, accordingly the Accountant Determined Earn Out Amount shall be the amount of the Earn Out Payment. Such independent firm of chartered accountants shall be instructed to deliver their determination as soon as practicable to the LLP Sellers’ Representative and the Buyer. . 4.13 The LLP Sellers’ Representative and the Buyer agree that they shall instruct any accountants appointed under clause 4.11 to determine only the particular aspect of the preparation of the Earn Out Statement in dispute and, accordingly, such accountants shall not determine or adjust any other matter or have regard to any fact not directly relating to the matter in dispute. 4.14 The fees and expenses of the Independent Accountant accountant appointed pursuant to this clause 4 shall be paid one-half by the Buyer and the Sellers in equal shares or as the accountant may determine. 4.15 If either the Sellers or the Buyer fails to pay such fees of the accountants appointed under clause 4.11 in accordance with the provisions of clause 4.14, the other party may in its absolute discretion pay such fees on the non-paying party’s behalf and onethe non-half by Buyer; provided, however, that if EBITDA for paying party shall reimburse the applicable Measurement Period as finally determined other on demand all costs and expenses incurred by the Independent Account other in so doing. 4.16 Subject to clause 4.17, the Sellers acknowledge, understand and set forth agree that:- (a) after Completion the Buyer shall exercise operational control over the business and assets of the Group; and (b) that the future operation of the business of the Group, and the marketing and sale of their products is to be exercised by the Buyer in accordance with its own business judgment and in its sole and absolute discretion. 4.17 During the Earn Out Period, the Buyer shall not: (a) terminate the employment of any LLP Seller or JCA Employee other than in following circumstances: (i) the LLP Seller or JCA Employee voluntarily resigning; (ii) the LLP Seller’s or JCA Employee’s gross misconduct, as defined in the Settlement Amount Certificate (defined below) is closer Buyer’s UK Company Employee Handbook, as at the date of this Agreement and as disclosed to the EBITDA calculation submitted by LLP Sellers; (iii) the Representative than LLP Seller or JCA Employee committing or continuing to commit a serious breach of her obligations in his or her Service Agreement that is not reasonably capable of being rectified within a reasonable period; (iv) the EBITDA calculation submitted by BuyerLLP Seller or JCA Employee being deemed to be repeatedly failing to perform their duties and obligations under his or her Service Agreement, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include which has not been remedied within a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”).reasonable period; (v) For purposes the LLP Seller or JCA Employee is or has become of this Section 3(eunsound mind or a patient under the Mental Health Xxx 0000; (vi) the LLP Seller or JCA Employee is convicted of a criminal offence (excluding an offence under road traffic legislation in the United Kingdom and elsewhere for which a penalty of imprisonment cannot be imposed); or (vii) the LLP Seller or JCA Employee has become addicted to or is habitually under the influence of alcohol or any drug (not being a drug prescribed to him or her by a medical practitioner for the treatment of a condition other than drug addiction) the possession of which is controlled by law; or (b) unreasonably (in the reasonable discretion of the Buyer), “EBITDA” shall mean take, divert or re-direct any business opportunities away from the sum of net income LLP Sellers or the JCA Employees. 4.18 The LLP Sellers acknowledge, understand and agree that no Member of the Company for the Measurement Period plus (Buyer Group has a duty to the extent deducted LLP Sellers to use any level of efforts to do any action or thing which would or might increase the Aggregate JCA Revenue for any part of the Earn Out Period. However, no Member of the Buyer Group will knowingly interfere with or do anything the primary purpose of which is to impair or adversely diminish the Aggregate JCA Revenue for any part of the Earn Out Period. 4.19 The Aggregate JCA Revenue shall be, unless otherwise agreed in determining writing by the Company’s net incomeLLP Sellers’ Representative, calculated on the basis of the Remuneration Model. 4.20 Notwithstanding that as at the date of the Agreement neither party envisages such a requirement, if the Buyer or the Group is required to account for Tax or National Insurance contributions in relation to any Earn Out Payments made to the Sellers, the Buyer or Group Entity (as relevant) (i) interest expense may make deduction of such Tax or National Insurance contributions from those Earn Out Payments and shall not be required to increase any Earn Out Payments or otherwise compensate the Sellers for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAPthose deductions.

Earn-Out. (a) Buyer agrees to pay to Seller, as additional consideration for the purchase of the Shares, an amount (the “Earnout Amount”) equal to: (i) As soon the Specified Voluntary GWP during the Reference Period, minus (ii) $25,000,000; provided, that in no event shall Buyer pay Seller more than $25,000,000 under this Section 2.6. If the Specified Voluntary GWP during the Reference Period does not exceed $25,000,000, no Earnout Amount shall be due under this Section 2.6. An example calculation of the Earnout Amount is attached hereto as practicable after June 30Exhibit I. (b) For purposes of this Section 2.6, 2008the Specified Voluntary GWP and the Earnout Amount shall be determined as follows: (i) Within 30 days following each of (w) the three-month anniversary of the Earnout Commencement Date, or(x) the six-month anniversary of the Earnout Commencement Date, if sooner, as soon as practicable after a Sales Event (as hereinafter defined)y) the nine-month anniversary of the Earnout Commencement Date and (z) the last day of the Reference Period, Buyer shall prepare and deliver to the Representative Seller a statement of EBITDA (as defined in Section 3(e)(v) below) each an “Earnout Statement,” and the Earnout Statement delivered pursuant to the foregoing clause (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each casez), the “Measurement PeriodFinal Earnout Statement”) (including the portion, if any, setting forth its good faith calculation of the Measurement Period occurring prior Specified Voluntary GWP and the corresponding Earnout Amount then-accrued during the Reference Period, and shall pay to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver Seller (by wire transfer of immediately available funds to the Representative bank account or accounts designated by Seller to Buyer), with the Statement of EBITDA by August 15, 2008, in the case delivery of the preceding clause (x)Earnout Statement, any positive Earnout Amount shown thereon and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available not previously paid to the Representative copies of all work papers and other documents and data as was used Seller pursuant to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in this Section 3(e)(iv) below.2.6; (ii) Except as provided in Section 3(e)(iii) below in Following the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion Closing and until the final determination of the Statement of EBITDA, and after completion of the time and procedure described in Earnout Amount pursuant to Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”2.6(b)(iii), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) Applicable Law, Buyer shall grant Seller and 15(f); providedits Representatives, howeverupon reasonable prior notice, that if it is determined, after completion reasonable access during normal business hours to the books and records (redacted or aggregated as required to not violate any confidentiality obligations of the Statement Buyer and its Affiliates) of EBITDA, Buyer and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, its Affiliates directly related to Specified Voluntary GWP that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior are relevant to the Closing Date) is less than the Required EBITDA Amount and equal Earnout Statements, and, during such period, Buyer shall furnish to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject Seller such information that relates to Buyer’s rights obligations under Sections 2(b) and 15(f), promptly pay a portion this Section 2.6 as Seller may from time to time reasonably request; provided such access does not interfere with the conduct of the Earn Out payable in cash and a portion business of the Earn Out payable Buyer or any of its Affiliates in shares any material respect; (iii) The Final Earnout Statement and its calculation of Buyer Common StockSpecified Voluntary GWP shall be final and binding on the parties unless Seller shall, in each case, in an amount equal to (1) within 45 days following the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion delivery of the Earn Out Final Earnout Statement, deliver to Sellers; and provided further, however, that if it is determined, after completion Buyer written notice of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested objection (an “Earnout Dispute Notice”) with respect to the omitted portionsFinal Earnout Statement. procedure described The Earnout Dispute Notice shall specify in Section 3(e)(iv) below if Representative disputes reasonable detail the disputed items on the Final Earnout Statement of EBITDA, that EBITDA and describe in reasonable detail the basis for the Measurement Period (including disputed items and the portionamount in dispute. Following the delivery of an Earnout Dispute Notice, if any, of the Measurement Period occurring prior parties shall consult with each other with respect to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due disputed items and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDAdispute. If the Independent Accountant parties are unable to reach agreement within 30 days after delivery of an Earnout Dispute Notice, such dispute shall be resolved in accordance with the same dispute resolution procedures that apply to resolution of disputes with respect to the Final Payment Statement in accordance with Section 2.5(d) and Section 2.5(e), applied mutatis mutandis. (c) If the Earnout Amount as finally determined pursuant to Section 2.6(b)(iii) is retainedpositive and exceeds the aggregate amount previously paid pursuant to Section 2.6(b)(i), then within 30 days of such determination, Buyer shall pay Seller, by wire transfer of immediately available funds to the bank account or accounts designated by Seller to Buyer, an amount equal to (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement PeriodEarnout Amount, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and minus (ii) any prior payments of the Independent Accountant shall, within thirty (30) days after receiving Earnout Amount made to Seller under this Section 2.6. In the positions of both the Representative and event Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable byhas paid Seller $25,000,000 under this Section 2.6, the Representative and Buyer. The fees and expenses of the Independent Accountant 's obligations under this Section 2.6 shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)terminate. (vd) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) The parties acknowledge and agree that (i) interest expense for such periodany Earnout Amount is not guaranteed and is highly speculative and is subject to numerous factors outside of Buyer's and its Affiliates’ control, (ii) income tax expense any Earnout Amount is payable at a level that reflects strong future performance, (iii) there is no assurance that any Earnout Amount will be achieved and neither Buyer nor any of its Affiliates has promised or projected such achievement and (iv) that subject to their obligations under Section 2.6(e), Buyer, its Affiliates and their respective Representatives shall have sole discretion over the business and operations of the Buyer and its Affiliates (including the Transferred Companies from and after the Closing) and may make business decisions which they believe to be appropriate but in hindsight may directly or indirectly affect the likelihood that any Earnout Amount is payable. The right to receive any Earnout Amount (if any) hereunder (A) is solely a contractual right and is not a security, (B) is solely represented by this Agreement and is not represented by any certificate, instrument or other delivery, (C) shall confer upon Seller, WIMC or any of their respective Affiliates only the rights of a general unsecured creditor under Applicable Law, (D) does not give Seller, WIMC or any of their respective Affiliates any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of equity securities of the Buyer, its Affiliates (including the Transferred Companies from and after the Closing), or any other Person, (E) is not redeemable and (F) may not be transferred, assigned, conveyed, gifted, pledged or otherwise hypothecated by Seller. (e) Buyer and its Affiliates shall (i) act in good faith and use their commercially reasonable efforts which, for these purposes, shall mean the efforts typically used by Buyer and its Affiliates in developing, launching, marketing, selling and otherwise promoting other new insurance products (as such periodefforts might be reasonably adapted for purposes of promoting this product) to produce Specified Voluntary GWP in an amount such that the Earnout Amount equals $25,000,000, (ii) without limiting the foregoing, not take any action, the sole purpose of which, is to reduce and eliminate Buyer's obligations under this Section 2.6., and (iii) depreciation expense, amortization expense that from and other non-cash expenses for such period, in each case, measured after the Closing Date until the final determination of the Earnout Amount in accordance with GAAPSection 2.6(b), maintain the books and records contemplated by Section 2.6(b) such that they are complete and accurate in all material respects. Subject to the foregoing, the parties acknowledge and agree that Buyer and its Affiliates (including the Transferred Companies from and after the Closing) shall have the power and right to control all aspects of their business and operations. (f) Seller and its Affiliates shall, and shall cause each of their Representatives to, maintain in confidence any information derived from the books and records contemplated by Section 2.6(b) in accordance with their obligations under Section 4.3(c); provided, that the term of such obligations under Section 4.3(c) with respect to such information shall survive for a period of three years after the expiration of the Reference Period. (g) Buyer will give Seller notice thereof promptly following the first date when Buyer or one of its Affiliates starts writing Specified Voluntary GWP.

Earn-Out. (a) Seller shall be entitled to receive the following payments (each, an “Earn Out Payment”) to the extent the Business achieves the applicable EBITDA (as defined below) targets: (i) As soon as practicable after June 30, 2008, orAn Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if soonerthe EBITDA of the Business for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), as soon as practicable after a Sales Event if the EBITDA of the Business for the trailing twelve (as hereinafter defined12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greater. (b) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to the Representative Seller a statement of the EBITDA (as defined in Section 3(e)(v) below) of the Business for such Earn Out Period (the “Statement of EBITDAEarn Out Statement”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative Seller shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to review inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such statementobjection, as well as the amount in dispute. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Seller fails to deliver an Objection Notice to Buyer on or prior to the expiration of such 30-day periodthe Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. Buyer and If Seller timely delivers an Objection Notice, the Representative parties shall then attempt negotiate in good faith to resolve their dispute regarding the Statement disputed items and agree upon the resulting amount of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or EBITDA and the Representative may retain Earn Out Payment for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDAapplicable Earn Out Period. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit parties are unable to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after receiving such disputed items are referred to it. If the positions of both the Representative and Buyer and all supplementary supporting documentation requested the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Independent AccountantSeller, render its decision as to on the Statement of EBITDA, which decision shall be final and binding onone hand, and nonappealable bythe Buyer, on the Representative and Buyer. The fees and expenses of the Independent Accountant other hand, shall be paid bear one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses costs of the Independent Accountantsuch accounting firm. The decision of the Independent Accountant accounting firm shall take into consideration be deemed final and conclusive and shall be binding upon the respective positions Seller and supporting documentation submitted by the Representative and Buyer Buyer. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the preceding clause product determined by multiplying (i)) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, but shall ultimately be derived solely from where the Company’s financial statements used to produce Buyer’s financial statements filed with “Achievement Percentage” is the SEC for percentage determined by dividing (A) the fiscal period(samount of (i) covering the relevant Measurement Period. The decision EBITDA of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation Business for the applicable Measurement Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Settlement Amount CertificateEarn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (ve) For purposes of this Section 3(e)Agreement, “EBITDA” shall mean the sum of net earnings before interest, income taxes, depreciation and amortization of the Company Business, for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such periodapplicable fiscal period ended, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured determined in accordance with GAAP. For purposes of calculating the Earn-Out Payment, the Management Fee described in Section 4.8 shall be added back to increase earnings and not be treated as an expense of the Buyer.

Earn-Out. (a) Following the Closing, in addition to the Closing Transaction Consideration, if a Triggering Event shall occur during the Earn Out Period, then within five Business Days after the occurrence of such Triggering Event, Parent shall issue or cause to be issued to the Company Holders, in accordance with the Merger Consideration Allocation Schedule, validly issued, fully paid and nonassessable Earn Out Shares. (b) If a Change of Control of Parent occurs during the Earn Out Period that will result in the holders of Parent Common Stock receiving a per share price equal to or in excess of $18.00, then, immediately prior to the consummation of such Change of Control, all of the Earn Out Shares shall be issued and shall be allocated as set forth on the Merger Consideration Allocation Schedule, and the holders of such Earn Out Shares shall be eligible to participate in such Change of Control. For the purposes of this Agreement, a “Change of Control” shall have been deemed to occur with respect to Parent upon: (i) As soon a sale, lease, license or other disposition, in a single transaction or a series of related transactions, of 50% or more of the assets of Parent and its Subsidiaries, taken as practicable a whole; (ii) a merger, consolidation or other Business Combination of Parent resulting in any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) acquiring at least 50% of the combined voting power of the then outstanding securities of Parent or the surviving Person outstanding immediately after June 30, 2008, such combination; or, if sooner, (iii) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver to in effect on the Representative a statement of EBITDA Closing Date) obtaining beneficial ownership (as defined in Section 3(e)(vRules 13d-3 and 13d-5 under the Exchange Act) belowof the voting stock of Parent representing more than 50% of the voting power of the capital stock of Parent entitled to vote for the election of directors of Parent. (c) The Earn Out Shares and the Triggering Event shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to shares of Parent Common Stock, occurring on or after the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event date hereof and prior to June 30, 2008, the period from and after July 1, 2007, through time any such Earn Out Shares are delivered to the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portionCompany Holders, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (iid) Except as provided in Section 3(e)(iii) below in the event Parent shall, at all times, keep available for issuance a sufficient number of a Sales Event (as hereinafter defined) prior unissued shares of Parent Common Stock to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior permit Parent to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay issue the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDAShares, and after completion Parent shall take all actions required to increase the authorized number of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Parent Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay Stock if at any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out there shall be due and Buyer shall have no obligation insufficient unissued shares of Parent Common Stock to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) belowpermit such reservation. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (ia) As soon as practicable after June 30In addition to the Closing Date Buyer Shares and the Holdback Shares, 2008Sellers shall be eligible to receive earn-out payments (the “Milestone Payments”) following the closing, to be paid in cash and/or shares of Buyer Preferred Stock (or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement extent Buyer receives stockholder approval prior to the applicable issuance date, shares of EBITDA (as defined in Section 3(e)(v) belowBuyer Common Stock) (the “Statement of EBITDAMilestone Shares” and, together with the Closing Date Buyer Shares and the Holdback Shares, the “Buyer Shares”) measured in U.S. dollars for at the sole discretion of Buyer, upon occurrence of the following events (xeach, a “Milestone”): (i) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007$4,750,000 if Buyer initiates, through the Business Day immediately preceding enrollment and randomization of a first patient into the closing date first Phase III pivotal study of such Sales Event any Company Product with the FDA (an “Initiation), provided that, for the avoidance of doubt, a Milestone Payment shall only be payable with respect to the first Initiation to occur; and (ii) $4,750,000 if Buyer receives approval of a 505(b)(1) New Drug Application (or NDA) or a 505(b)(2) New Drug Application (or NDA) by the FDA with respect to any Company Product (each, an “FDA Approval”), provided that, for the avoidance of doubt, a Milestone Payment shall only be payable with respect to the first FDA Approval to occur. (b) Buyer shall promptly notify Sellers in each case, the “Measurement Period”) (including the portion, if any, writing after an Initiation has occurred or an FDA Approval has been received. Within 30 days of notification by Buyer to Sellers of the Measurement Period occurring prior receipt of a FDA Approval or the occurrence of an Initiation, Buyer shall pay or cause to be paid the applicable Milestone Payment either (i) in cash by wire transfer of immediately available funds to bank accounts designated by Sellers in writing in the amount set forth next to each Seller’s name on Exhibit A-1, and/or (ii) by the issuance of Milestone Shares issued to the Closing DateSellers that are convertible, with respect to each Seller, into a number of Buyer Common Shares determined by dividing (A) the applicable dollar amount of the Milestone Payment set forth next to such Seller’s name on Exhibit A-1 by (B) the VWAP Price as of the date when the achievement of the applicable Milestone is first publicly announced, provided, however, that such resulting per-share price shall not be less than $2.4725 and prepared in accordance with GAAP. shall not be greater than $4.5917. (c) Subject to the terms of this Agreement and the Transaction Documents, subsequent to the Closing, Buyer shall endeavor in good faith have sole discretion with regard to deliver all matters relating to the Representative the Statement of EBITDA by August 15, 2008, in the case operation of the preceding clause Company. Notwithstanding the foregoing, Buyer shall use its Commercially Reasonable Efforts to reach each Milestone. (x), d) In case and within 20 Business Days after only to the Sales Event, in extent the case value of the preceding clause (y). Holdback Shares does not entirely cover the Buyer's Losses, Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (withhold and set off against any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior amount otherwise due to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior be paid or issued pursuant to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then 2.03 (i) the Representative and Buyer shall each submit amount of any Post-Closing Adjustment owed to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect it pursuant to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requestsSection 2.05, and (ii) the Independent Accountant shallamount of any claim for indemnification or payment of damages to which Buyer may be entitled under this Agreement. Additionally, within thirty any amount otherwise due to be paid or issued pursuant to this Section 2.03 shall be reduced by (30i) days after receiving any Milestone Payments payable to Laboratoires Lxxxxxxx Mediolanum S.A.S. (“Mediolanum”) in connection with the positions of both the Representative and Buyer and all supplementary supporting documentation requested termination by the Independent AccountantCompany following the Closing of the License Agreement between the Company and Mediolanum dated November 17, render its decision 2014, as amended (the “Mediolanum Agreement”), and (ii) any Milestone Payment (the “Torreya Milestone Payment”) payable to Torreya Partners (Europe) LLP (“Torreya”) pursuant to the Statement terms of EBITDAthe Engagement Letter between Torreya and the Company dated as of January 28, 2018, as amended (the “Torreya Agreement”), which decision payment shall be final and binding on, and nonappealable bydeemed a Transaction Expense hereunder. To the extent the Buyer elects to make a Milestone Payment in Milestone Shares, the Representative value per Milestone Share for purposes of withholding and Buyer. The fees and expenses of the Independent Accountant setting off pursuant to this Section 2.03(d) shall be paid one-half by calculated using the Sellers same methodology and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and limitations set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”Section 2.03(b)(ii)(B). (ve) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) The parties hereto understand and agree that (i) the contingent rights to receive the Milestone Payments shall not be represented by any form of certificate or other instrument, are not transferable, except by operation of Laws relating to descent and distribution, divorce and community property, by charitable donation to a non-profit entity or by assignment to a family corporation or similar entity, and do not constitute an equity or ownership interest expense for such periodin Buyer or the Company, (ii) income tax expense for such periodSellers shall not have any rights as securityholders of Buyer or the Company as a result of Sellers’ contingent right to receive the Milestone Payments hereunder, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance no interest is payable with GAAPrespect to the Milestone Payments.

Earn-Out. (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event If Company Gross Profit during any of the four (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (124) calendar months ending June 30quarters of calendar year 2012 (each, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) exceeds $3,000,000, an amount equal to the product of (including A) the portionpositive difference between (I) the Company Gross Profit during such Measurement Period and (II) $3,000,000, multiplied by (B) 75%, shall be deemed to be “Additional Consideration,” provided that the aggregate amount of Additional Consideration, regardless of the level of Company Gross Profit during any or all Measurement Periods, shall not exceed $7,500,000. An aggregate amount equal to the total Additional Consideration, if any, shall be paid by Parent no later than ninety (90) days following the conclusion of the final Measurement Period occurring prior to the Closing Date) and prepared Earn Out Participants, with such aggregate amount to be allocated among the Earn Out Participants in accordance with GAAPthe amounts such Earn Out Participants would have received if such Additional Consideration was included as part of the Aggregate Closing Merger Consideration payable at the Closing, provided that such payment shall only be made to Earn Out Participants who have complied with the terms hereof such that they received payment for their Company Shares hereunder or the payment to which they were initially entitled under the Santur Corporation 2011 Incentive Plan. Buyer Parent shall endeavor act in good faith and not in a manner with a specific intent to deliver to reduce the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in payments under this Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f2(m); provided, however, that if it is determined, after completion Parent shall be entitled to operate the Company’s business following the Closing in a manner consistent with the business judgment of Parent’s board of directors and management and the Company’s business will be subject to the same review and resource planning as Parent’s other business units following the Closing. (ii) The determination of the Statement of EBITDA, Company Gross Profit and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portionAdditional Consideration, if any, for each Measurement Period shall be made by Parent, and written notice thereof together with a calculation of the Measurement Period occurring prior Company Gross Profit and Additional Consideration, setting forth the components thereof in reasonable detail shall be delivered to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Stockholder Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales EventGross Profit Notice”), and ) no later than forty-five (B45) it is determined, after days following the completion of each Measurement Period. If the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Stockholder Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period delivers written notice (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the a “Post-Closing Earn Out Conditions Following a Sales EventDispute Notice”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP Parent within thirty (30) days after any Gross Profit Notice is given in accordance with Section 2(m), stating that the end of each Stockholder Representative objects to the amount of the first three fiscal quarters during Company Gross Profit and Additional Consideration reflected therein, specifying the Measurement Period; providedbasis for such objection in reasonable detail (including the specific items in dispute), however, that and setting forth the dispute resolution procedures set forth below will only apply to Stockholder Representative’s proposed amount of such Company Gross Profit and Additional Consideration (including the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt proposed amounts of the Statement of EBITDA disputed items), the Stockholder Representative and Parent will attempt to review resolve and finally determine and agree upon such statementCompany Gross Profit and Additional Consideration, as promptly as practicable. If the Stockholder Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior does not deliver a Dispute Notice to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, Parent within thirty (30) days after receiving a Gross Profit Notice is given in accordance with Section 2(m) (or at such earlier time as the positions of both Stockholder Representative delivers written notice to Parent stating that the Stockholder Representative does not object to any items in such Gross Profit Notice), the Company Gross Profit and Buyer Additional Consideration specified in the Gross Profit Notice for such Measurement Period will be conclusively presumed to be true and correct in all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall respects and will be final and binding onupon the parties. In connection with the review of any Gross Profit Notice, and nonappealable byto the extent the Stockholder Representative does not possess all relevant information, the Stockholder Representative and Buyer. The fees and expenses of the Independent Accountant shall its advisors will be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate permitted reasonable access (defined below) is closer including electronic access to the EBITDA calculation submitted by extent available) to review the Representative than books, records and other relevant information of Parent and the Surviving Corporation relating to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s business, operations, accounts and other financial information as it relates to the Company Gross Profit, and Parent shall (A) make reasonably available the individuals employed by Parent or the Surviving Corporation, as applicable, who are responsible for and knowledgeable about the information used in, and the preparation of, the financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of upon which the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, Gross Profit and Additional Consideration are based and (iiiB) depreciation expense, amortization expense use its commercially reasonable efforts to cause its independent accountants and other non-cash expenses for such periodrepresentatives to be made available, in each case, measured in order to assist the Stockholder Representative in the review of such Gross Profit Notice. (iii) If the Stockholder Representative and Parent are unable to agree upon the Company Gross Profit and Additional Consideration for a Measurement Period within thirty (30) calendar days after a Dispute Notice is given in accordance with GAAPSection 2(m)(ii), the Stockholder Representative and Parent will jointly select an independent, internationally recognized accounting firm that has not provided material services to either Parent or the Company in the five (5) years preceding the date of this Agreement to resolve the disputed amount and make a determination of the applicable Company Gross Profit and Additional Consideration. The accounting firm shall address only the disputed items set forth in the Dispute Notice and may not assign a value greater than the greatest value claimed for such item by either party or smaller than the smallest value claimed for such item by either party. The accounting firm will (i) resolve the disputed items specified in the Dispute Notice and (ii) determine the Company Gross Profit and Additional Consideration, as modified only by the resolution of such items. The determination by the accounting firm so selected will be made within thirty (30) calendar days after such selection and will be final and binding upon the parties. The fees, costs and expenses of (i) the accounting firm so selected and (ii) any attorney or auditor retained by either party for consultation as part of the dispute resolution process will be borne by the party (for the avoidance of doubt, by either the Company Indemnifying Parties or Parent) whose positions generally did not prevail in such determination, or if the accounting firm determines that neither party could be fairly found to be the prevailing party, then such fees, costs and expenses will be borne fifty percent (50%) by the Company Indemnifying Parties and fifty percent (50%) by Parent. In the event that fees, costs or expenses shall be allocated to the Company Indemnifying Parties pursuant to the foregoing, Parent shall be entitled to pay any such fees, costs and expenses and deduct a like amount from the Escrow Fund, without regard to the Basket Amount.

Earn-Out. The Purchaser shall, pursuant to an agreement to be entered into with the Escrow Agent (ithe "Earn Out Escrow Agreement") As soon as practicable deposit the Earn Out Deposit upon the Closing into a segregated interest bearing escrow account (the "Earn Out Escrow Account") to be held by the Escrow Agent for twelve (12) months subsequent to the Closing Date (the "Escrow Term") in accordance with the provisions of Section 16(b)(iv) above and the provisions hereinbelow set forth. In the event that the Purchaser sells during the period commencing May 1, 1998 and terminating twelve (12) months after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event the Closing (the "Earn Out Selling Period") Fourteen Hundred (1,400) "Qualifying Units" (as that term is hereinafter defined), Buyer shall prepare and deliver the Company will be entitled to the Representative entire Earn Out Deposit. As used herein, a statement of EBITDA (as defined in Section 3(e)(v) below) (sale by the “Statement of EBITDA”) measured in U.S. dollars for (x) Purchaser during the twelve (12) calendar months ending June 30Escrow Selling Period after the Closing, 2008 or (y) in a sale by the event of a Sales Event prior to June 30, 2008, Company during the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Escrow Selling Period occurring prior to the Closing DateClosing, of one (1) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause Company's "Helios" projectors, one (x)1) of its "Kronos" projectors or two (2) of its "CRT" projectors at prices and upon such terms and conditions to be mutually agreed upon by the Purchaser and the Company from time to time, and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available be deemed to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event be a sale of a Sales Event (Qualifying Unit. At such time as hereinafter defined) prior to June 30, 2008, if it is determined, after completion the Purchaser has effected the sale during the Escrow Selling Period of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior 100 Qualifying Units subsequent to the Closing Datein the manner described herein, the Company shall be entitled to receive One Million ($1,000,000) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay Dollars from the Earn Out Escrow Account. Thereafter, the Company shall be entitled to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion receive a pro rata share of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion remaining balance of the Earn Out payable in cash and a portion of Deposit for each Qualifying Unit sold during the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Escrow Selling Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect up to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement sale of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Periodadditional 1,300 Qualifying Units; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer parties agree that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested sale by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.the

Earn-Out. In addition to the Aggregate Closing Date Consideration, the Interest Holders shall be entitled to additional consideration from the Parent or the Company as follows in this Section 2.14 (ithe “Earn-Out Payment”): (a) As soon as practicable after June 30For the period beginning on July 1, 20082011, orand ending on July 1, 2012, and each of the four (4) succeeding twelve-month periods beginning on July 1 thereafter (the “Earn-Out Term” and each year of the Earn-Out Term an “Earn-Out Year”), the Interest Holders shall be entitled to earn an amount equal to 25% of Pre-Tax Profit that exceeds Seventeen Million Five Hundred Thousand Dollars ($17,500,000.00) (the “Yearly Earn-Out Payment”); provided that any Yearly Earn-Out Payment shall not exceed Eight Million Dollars ($8,000,000.00) in the aggregate (the “Yearly Earn-Out Cap”). If it is finally determined that a Yearly Shortfall has occurred, Parent shall pay to the Interest Holders (simultaneously with the payment of the Yearly Earn-Out Payment, if soonerany) the Yearly Excess (if any) from any or all previous Earn-Out Years (to the extent not already paid to the Interest Holders) in an amount equal to such Yearly Shortfall. If it is finally determined that a Yearly Excess has occurred, as soon as practicable Parent shall pay to the Interest Holders (simultaneously with the payment of the Yearly Earn-Out Payment, if any) such Yearly Excess in an amount equal to the aggregate Yearly Shortfall from any previous Earn-Out Year (to the extent not already paid to the Interest Holders). (b) Within ninety (90) days after a Sales Event each twelve-month period in the Earn-Out Term, Parent shall in good faith prepare (as hereinafter defined), Buyer shall prepare or cause to be prepared) and deliver to the Interest Holder Representative a statement of EBITDA (as defined in Section 3(e)(v) below) report setting forth the Pre-Tax Profit for such period (the “Statement Pre-Tax Profit Report”), together with worksheets and data that support the determination of EBITDA”the Pre-Tax Profit for such period and any other information that the Interest Holder Representative may reasonably request in order to verify the Pre-Tax Profit. The Pre-Tax Profit Report and the Pre-Tax Profit for the twelve-month period reflected thereon, shall be binding upon the Interest Holder Representative, Stockholders and Parent upon the approval of such Pre-Tax Profit Report by the Interest Holder Representative or the failure of the Interest Holder Representative to object in writing within thirty (30) measured in U.S. dollars for days after receipt thereof by the Interest Holder Representative. If the Interest Holder Representative does not agree with the Pre-Tax Profit Report and the calculation of the Pre-Tax Profit stated thereon, and Parent and the Interest Holder Representative cannot mutually agree on the same, then within forty-five (x45) days following receipt by the twelve Interest Holder Representative of the Pre-Tax Profit Report, Parent and the Interest Holder Representative shall engage the Neutral Accountant to resolve such dispute. The Neutral Accountant shall review the Pre-Tax Profit Report and, within ten (1210) calendar months ending June 30Business Days of its appointment, 2008 or (y) in shall make any adjustments necessary thereto, and, upon completion of such review, such Pre-Tax Profit Report and the event of a Sales Event prior to June 30, 2008Pre-Tax Profit as determined by the Neutral Accountant shall be binding upon the Interest Holder Representative, the period Stockholders and Parent. The fees and expenses of the Neutral Accountant shall be borne by the parties in proportion to the amounts by which their proposals differed from the Neutral Accountant’s final determination. In connection with the resolution of any dispute, each party (the Stockholders on one hand and after July 1Parent on the other) shall pay its own fees and expenses, 2007including legal, through the Business Day immediately preceding the closing date of such Sales Event accounting and consultant fees and expenses. (in c) Subject to Section 2.14(g), for each caseEarn-Out Year, the “Measurement Period”) (including the portionYearly Earn-Out Payment, if any, shall be paid to the Interest Holder Representative, on behalf of the Measurement Period occurring prior to Stockholders, and (at the Closing Datedirection within five (5) and prepared Business Days of the final determination of the Pre-Tax Profit for the applicable Earn-Out Year in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (xSection 2.14(a) and Section 2.14(b), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (d) None of Parent, the Surviving Company, nor any of their respective Affiliates shall take any action primarily intended to interfere with the ability of the Company and its Subsidiaries to maximize the Earn-Out Payments. Parent agrees that from the Effective Time through the end of the Earn-Out Term, Parent shall, and shall cause the Surviving Company, as applicable, to (i) cause the business activities and operations of the Surviving Company and its Subsidiaries to be accounted for separately from any other business activities and operations of Parent and to maintain such books and records with respect thereto as shall be necessary to carry out the provisions of this Agreement, (ii) Except not enter into any contract that specifically prohibits (except upon the occurrence of a default or an event of default, and then only for so long as provided such default or event of default is continuing) Parent or the Surviving Company from paying a Yearly Earn-Out Payment or any Yearly Excess, and (iii) provide the business with adequate working capital; provided, however, that nothing in this Section 2.14(d)(iii) shall be interpreted as prohibiting the Surviving Company (or any of its Subsidiaries) from entering into loan or similar credit arrangements in the ordinary course of business. (e) None of Parent’s or its Affiliates’ existing credit agreements, lines of credit, loans or similar arrangements contain a specific prohibition (except upon the occurrence of a default or an event of default, and then only for so long as such default or event of default is continuing) against payment of a Yearly Earn-Out Payment or any Yearly Excess. Parent represents and warrants that as of the date hereof no event of default has occurred and is continuing under any such credit arrangements that would restrict the payment of a Yearly Earn-Out Payment or any Yearly Excess. (f) In the event a Yearly Earn-Out Payment or Yearly Excess is due but not paid (for any reason other than the express right of offset set forth in Section 3(e)(iii2.14(g)), the amount due shall accrue interest at a rate of four percent (4%) below in the event of a Sales Event per annum. (as hereinafter definedg) prior Parent may elect to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(ivset off against (i) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portionany Yearly Earn-Out Payment earned but not yet paid any payments, if any, due from the Interest Holders in accordance with Sections 6.07, 6.08; and (ii) the amount of the Measurement Period occurring prior any Remaining Payment Obligations owed pursuant to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(fSection 2.13(d)(iii); provided, however, that if it is determinedin the case of any offset pursuant to Section 2.14(g)(i), after completion Parent shall (x) first have exhausted its right of offset against the full amount of the Statement of EBITDAAdjusted Indemnity Holdback Amount, and after completion (y) not be permitted to offset any amounts against the Yearly Earn-Out Payments in excess of the time Earn-Out Indemnity Cap and procedure described in Section 3(e)(iv(z) below if Representative disputes not be permitted to offset any amounts against the Statement of EBITDA, Yearly Earn-Out Payments that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal relate to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable are in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately connection with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells projects of the general contracting division of the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and its Subsidiaries and (B) it is determinedNagelbush Mechanical, after completion Inc. (h) The Parties agree to treat the Earn-Out Payments as additional consideration paid for the purchase of the Statement of EBITDACompany Common Stock pursuant to this Agreement for all applicable Tax purposes, and after completion of the time no Party shall take a position on any Tax Return or other filings, or its books and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDArecords, that EBITDA for is inconsistent with this treatment, unless required by a change of Law effective after the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event this Agreement or a determination of a Governmental Authority that is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) beingfinal, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay provided that the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out Payments shall be due under this treated as interest as required by Code Section 3(e)(iii) 1274 (and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion the other applicable provisions of the Earn Out Code or applicable Tax Laws) using the discount rate to Sellersdetermine the imputed interest under Code Section 1274. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (a) For purposes of this Agreement, “Managed Facilities Net Technical Collections” shall mean the amount equal to the aggregate collections (the “Aggregate Collections”) attributable to the operations of ARO and Buyer at (i) As soon as practicable the Tonopah Facility, (ii) the Eastern Avenue Facility and (iii) the 3150 North Tenaya Facility (collectively, the “Managed Facilities”) after June 30deducting from such Aggregate Collections the sum of (x) twenty-five percent (25%) of such Aggregate Collections and (y) all expenses (except federal, 2008state and local taxes), or, if soonerincurred by Buyer or Seller, as soon authorized by the Management Services Agreement, in connection with the provision of services pursuant to the terms and provisions of that certain Management Services Agreement dated as practicable after of even dated herewith substantially in the form of Exhibit 1.3 attached hereto (the “Management Services Agreement”). (b) In addition to the Purchase Price, ARO shall be entitled to the following amounts (each, an “Earn-Out Payment”): (i) On the date which is ninety (90) days from the Closing Date and on the last day of each ninety (90) day period (each, an “Earn-Out Period”) thereafter until the date which is thirty-six (36) months from the Closing Date, ARO shall be entitled to receive from Buyer an amount equal to thirty percent (30%) of the Managed Facilities Net Technical Collections for the immediately preceding ninety (90) day period; (c) Each Earn-Out Payment shall be payable by Buyer to ARO not later than forty-five (45) days from the last day of the period in which such Earn-Out Payment was earned. (d) Buyer shall deliver with each Earn-Out Payment a Sales Event notice to ARO setting forth a reasonably detailed calculation for the applicable Earn-Out Period. Buyer, shall upon ARO’s request made within the same period, make available to ARO the books and records of Buyer and any related work papers, related to computation of the Earn-Out Payment. If ARO establishes a mistake in the calculation which Buyer does not dispute, the Earn-Out Payment shall be adjusted accordingly and the party in whose favor the mistake was made shall promptly pay the other party the amount due. (as hereinafter defined)e) Within sixty (60) days following the first, second and third anniversary of the Closing Date, Buyer shall prepare and deliver to the Representative provide ARO with a statement of EBITDA (as defined in Section 3(e)(v) below) reconciliation report (the “Statement Reconciliation Report”). Such Reconciliation Report shall contain a reasonably detailed summary of EBITDAany offsets, recoupments, refunds, or reapplication of revenues in order to address adjustments by third party payors including, without limitation, Medicare or Medicaid (collectively, “Adjustments”) measured in U.S. dollars for ). To the extent such Adjustments reduced Managed Facilities Net Technical Collections, such amount, at the option of Buyer, shall (x) the twelve (12) calendar months ending June 30, 2008 be promptly paid by ARO to Buyer or (y) in deducted from the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, next Earn-Out Payment following publication of the Measurement Period occurring prior Reconciliation Report. To the extent such Adjustments increased Managed Facilities Net Technical Collections, such amount shall be promptly paid to the Closing Date) and prepared in accordance with GAAPARO by Buyer. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative ARO shall have the right to dispute audit the Statement of EBITDA Reconciliation Report on an annual basis commencing on ten (and any items therein10) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in days notice to Buyer. In the event of a Sales Event (dispute exists as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal Earn-Out Payment, ARO shall provide written notice to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior specifying their concerns to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the CommissionReconciliation Report. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due ARO and Buyer shall have no obligation to pay all or any portion in good faith discuss resolution of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells dispute regarding the Company or all or substantially all of Reconciliation Report. In the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determinedevent, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after receipt of such written notice ARO and Buyer are unable to resolve the end of each dispute, ARO shall have the right to submit the dispute to binding arbitration with an independent certified public accountant. In the event the parties can not agree on an independent certified accountant ARO shall select one independent certified public accountant and Buyer shall select a second independent certified public accountant. The two certified independent public accountants will then select a third independent public accountant. The independent accountants will then review the Reconciliation Reports and all of the first three fiscal quarters during supporting documentation and render its decision by majority vote. ARO shall be responsible for the Measurement Period; provided, however, cost of the arbitration unless the arbitrators determine that there is at least a ten percent (10%) difference between the dispute resolution procedures set forth below will only apply Reconciliation Report and the actual amount due pursuant to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after Earn Out in which case the receipt cost of the Statement arbitration shall be borne by Buyer. (f) Provided Sellers are in compliance with the terms and provisions of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then this (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement PeriodAgreement, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, Management Services Agreement and (iii) depreciation expenseand each other Transaction Document, amortization expense and other nonthe Earn-cash expenses for such period, in each case, measured in accordance with GAAPOut Payments are hereby guaranteed by RTSI.

Earn-Out. (a) Upon the Surviving Corporation’s or Parent’s first acceptance of the filing of a New Drug Application (“NDA“) seeking the United States Food and Drug Administration (“FDA“) approval of Treanda for the treatment of non-Xxxxxxxx lymphoma (“NHL“) or chronic lymphocytic leukemia (“CLL“), Parent shall: (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event within five (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA (as defined in Section 3(e)(v5) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date days of such Sales Event (in each case, filing provide the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared Stockholders’ Representatives with written notice thereof in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement Section 11.5 of EBITDA by August 15this Agreement, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within before ten (10) days after following the Representative has notified Buyer that he disputes Buyer’s Statement occurrence of EBITDAsuch filing deposit with the Payment Agent, either Buyer or the Representative may retain for the benefit of all the parties hereto Stockholders (other than holders of Dissenting Shares), an independent accounting firm nationally recognized in aggregate amount of fifteen million dollars ($15,000,000) (less any amount thereof, if any, which would otherwise have been payable to holders of Dissenting Shares) by wire transfer of immediately available funds and (iii) cause the United States acceptable Payment Agent to both pay to each Stockholder (other than holders of Dissenting Shares), a cash amount, without interest, equal to such Stockholder’s applicable pro-rata percentage of such amount as set forth on Exhibit F hereof. (b) Upon receipt of FDA Approval for the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement treatment of EBITDA. If the Independent Accountant is retainedNHL or CLL, then Parent shall: (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen within five (155) days after of such approval provide the Independent Accountant is retained their respective positions Stockholders’ Representatives with respect to written notice thereof in accordance with Section 11.5 of this Agreement, (ii) on or before ten (10) days following the Statement occurrence of EBITDA and their respective calculation of EBITDA such approval deposit with the Payment Agent, for the benefit of the Stockholders (other than holders of Dissenting Shares), an aggregate amount of twenty-five million dollars ($25,000,000) (less any amount thereof, if any, which would otherwise have been payable to holders of Dissenting Shares) by wire transfer of immediately available funds and (iii) cause the Payment Agent to pay to each Stockholder (other than holders of Dissenting Shares), a cash amount, without interest, equal to such Stockholder’s applicable Measurement Period, together with pro-rata percentage of such supporting documentation amount as they deem necessary or set forth on Exhibit F hereof. (c) For the purposes of this Section 2.2, (i) any distributions made by Parent pursuant to Sections 2.2(a) and (b) shall hereinafter sometimes be referred to individually as an “Earn Out Payment“ and collectively as the Independent Accountant requests, and “Earn Out Payments”; and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions occurrence of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses any of the Independent Accountant events described in Sections 2.2(a) and (b) that require payment shall hereinafter sometimes be paid one-half by the Sellers referred to individually as an “Earn Out Event“ and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period collectively as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount CertificateEarn Out Events”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (a) With respect to the period of time beginning on (and including) the Closing Date and ending on (and including) May 25, 2014 (such period of time, “Year One”), the Sellers will collectively be entitled to the following amount (if any) based upon the Gross Profit for Year One (any such payment, an “Earn-Out Payment”): (i) As soon as practicable after June 30if the Gross Profit for Year One is less than $6,708,652, 2008, then the Sellers will not be entitled to any Earn-Out Payment for such period of time; or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in if the event Gross Profit for Year One is greater than or equal to $6,708,652, then the Sellers will collectively be entitled to receive an Earn-Out Payment for such period of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** $500,000. (b) With respect to the period of time beginning on (and including) May 26, 2014 and ending on (and including) May 24, 2015 (such period of time, “Required EBITDA AmountYear Two”), then Buyer shall promptly pay the Earn Sellers will collectively be entitled to an Earn-Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period Payment (including the portion, if any, of ) based upon the Measurement Period occurring prior to Gross Profit for Year Two: (i) if the Closing Date) Gross Profit for Year Two is less than $6,708,652, then the Required EBITDA Amount and Sellers will not be entitled to any Earn-Out Payment for such period of time; or (ii) if the Gross Profit for Year Two is greater than or equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”)$6,708,652, then Buyer shall, subject the Sellers will collectively be entitled to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion receive an Earn-Out Payment for such period of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount time that is equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below$500,000. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (vc) For purposes of this Section 3(e)1.6, “EBITDAGross Profit” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured will be calculated by Buyer in accordance with GAAPBuyer’s accounting methods, policies, practices and procedures and means, for each applicable year (e.g., Year One and Year Two), (y) the revenues received by the Business for the services performed by the Business during such year, minus (z) the costs incurred by the Business with respect to the services performed by the Business during such year, which costs will include the temporary payroll of the persons performing the services, temporary payroll taxes, temporary benefits, fees and costs associated with the Patient Protection and Affordable Care Act (also referred to as the Healthcare Reform Act), and workers’ compensation insurance costs (including losses) associated with the temporary payroll. (d) Each Earn-Out Payment, if any, shall be paid by Buyer to the Sellers, in the amounts and to the names and account(s) specified in Schedule 1.5, within 60 days of the last day of the applicable year (e.g., Year One and Year Two) for which such Earn-Out Payment is calculated; provided, that the conditions for payment of such Earn-Out Payment as set forth in this Section 1.6 have been satisfied and subject to the setoffs rights in Section 5.5; and provided, further, that any dispute as to the applicable Earn-Out Payment has been resolved pursuant to Section 1.6(e). For each fiscal month during Year One and Year Two, Buyer agrees to deliver to the Sellers, within 30 days after the end of such fiscal month, a statement showing the calculation of the Gross Profit (each, a “Gross Profit Statement”) for such fiscal month and the cumulative Gross Profit for the applicable year that includes such fiscal month. The Gross Profit Statement covering Year One or Year Two, as applicable, shall be referred to herein as an “Annual Gross Profit Statement”.

Earn-Out. Buyer shall pay to the accounts designated in writing by the Seller Representative for the benefit of the Sellers additional consideration in cash as described herein (the “Earn-Out,” with each payment made pursuant to the Earn-Out being an “Earn-Out Payment”) in accordance with the following: The Sellers shall receive an Earn-Out Payment from Buyer in a percentage amount of the EBITDA of the Companies for each of the six (6) consecutive years following the Closing (together, the “Earn-Out Period”), with the first year beginning on February 1, 2017 and ending on January 31, 2018, as follows: Year 1 Earn-Out: 40% of the EBITDA of the Companies Year 2 Earn-Out: 40% of the EBITDA of the Companies Year 3 Earn-Out: 40% of the EBITDA of the Companies Year 4 Earn-Out: 40% of the EBITDA of the Companies Year 5 Earn-Out: 75% of the EBITDA of the Companies Year 6 Earn-Out: 75% of the EBITDA of the Companies Notwithstanding anything in this Agreement to the contrary, (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event only to the extent the Companies (as hereinafter definedand/or their management team) run the Bxxxx Xxxxxx and/or B Bxxxx Xxxxxx women’s footwear line(s) (the “BA Lines”), Buyer for purposes of the Earn-Out, EBITDA shall prepare and deliver include the combined EBITDA of the BA Lines, but only to the Representative extent the combined EBITDA of the BA Lines is a statement positive number; provided that, for clarity, the combined EBITDA of EBITDA the BA Lines shall be reduced by nine percent (9%) of the net sales of the BA Lines, (ii) subject to the following two (2) sentences, if, pursuant to the Kxxx Spade Agreement, an Additional Royalty (as defined in Section 3(e)(vthe Kxxx Spade Agreement) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior is required to June 30, 2008be paid to Kxxx Spade LLC, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA Earn-Out Payment payable for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) year in which such Additional Royalty is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer actually paid shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** be reduced by fifty percent (***50%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement PeriodAdditional Royalty; provided, however, that the dispute resolution procedures set forth below will only apply maximum amount in which the Earn-Out Payment for each of the Year 2 Earn-Out and the Year 3 Earn-Out may be reduced in connection with the Additional Royalty shall be seventy five thousand dollars ($75,000.00), and (iii) subject to the Statement following two (2) sentences, any amounts paid pursuant to the Rent Stipulation shall be recouped against the Earn-Out Payment payable for the year in which such amount is actually paid. Notwithstanding anything to the contrary in the foregoing, with respect to each of EBITDA delivered Section 2.2(e)(ii) and Section 2.2(e)(iii) hereof, if the unadjusted Earn-Out Payment for any Earn-Out year in which the Earn-Out Payment is subject to reduction based on such Sections is insufficient to cover such reduction in full, the Sellers, jointly and severally, shall promptly pay to Buyer the amount of such deficiency. If Sellers do not pay the amount of such deficiency within twenty (20) days of Buyer’s delivery of the Earn-Out calculation for the applicable year (pursuant to the following paragraph), Buyer may set-off or recoup the amount of such deficiency against any Earn-Out Payment that is, or otherwise will be, due and payable to the Sellers pursuant to Section 3(e)(i2.2(e). Buyer shall deliver the calculation of any Earn-Out Payment for each year during the Earn-Out Period to the Seller Representative within sixty (60) abovedays after the end of such year, and such calculation shall be deemed conclusive and binding on the Parties for purposes of computing such Earn-Out Payment, unless the Seller Representative notifies Buyer in writing within forty-five (45) days after receipt of any such calculation of the disagreement therewith by the Seller Representative. The Any such notice of dispute shall state in reasonable detail the reasons for any such disagreement and identify the amounts and items in dispute. Buyer and the Seller Representative shall have until will use reasonable efforts to resolve any such disagreements themselves. If Buyer and the Seller Representative are unable to resolve any such disagreement within thirty (30) days after the of receipt of notice of the Statement of EBITDA to review Seller Representative’s disagreement, then such statementdispute shall be resolved in a manner consistent with the procedures described in Section 2.4(f). If the Seller Representative disputes fails to provide written notice of a disagreement with Buyer’s Statement calculation of EBITDA, he shall so notify any such Earn-Out Payment to Buyer on within such 45-day period or if the Seller Representative indicates in writing that the Seller Representative has no dispute with respect to the calculation of such Earn-Out Payment prior to the expiration of such 3045-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than make such Earn-Out Payment within fifteen (15) days after the Independent Accountant is retained their respective positions earlier of Buyer’s receipt of notice from the Seller Representative that the Seller Representative has no dispute with respect to the Statement of EBITDA and their respective calculation of EBITDA for such Earn-Out Payment or the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses expiration of the Independent Accountant shall be paid oneforty-half by five (45) day period during which the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) Seller Representative is closer required to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer provide such written notice pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”this Section 2.2(e). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver In addition to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30foregoing, 2008 or (y) in the event of a Sales Event prior to June 30Seller will receive from Buyer deferred payments, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each caseextent earned, in an amount equal to the sum of (1i) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion 10.8% of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion Pre-Tax Net Income of the Statement of EBITDA, and after completion Business plus (ii) an additional 9.2% of the time and * Certain information on this page has been omitted and filed separately Pre-Tax Net Income of the Business in excess of $30,816,000, determined in accordance with the Commission. Confidential treatment has been requested with respect GAAP subject to the omitted portions. procedure mutually agreed pro forma adjustments described in Section 3(e)(iv) below, for each Earn-Out Period as provided below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, and such payments will be a component of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. Purchase Price (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “PostEarn-Closing Earn Out Conditions Following a Sales EventPayments”). Notwithstanding the foregoing, then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and if at any time during any 12-month Earn-Out Period Xxxxxx X. Xxxxxx ceases to be employed by Buyer shall each submit to the Independent Accountant by virtue of his resignation without “Good Reason” (as such term is defined in writing not later than fifteen his Employment Agreement with Buyer) or by a termination by Buyer with Cause (15as defined in Appendix I), fifty percent (50%) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall Earn-Out Payment for that Earn-Out Period and fifty percent (50%) of any Earn-Out Payment for all remaining Earn-Out Periods will be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such periodforfeited, (ii) income tax expense if at any time during any 12-month Earn-Out Period Xxxxxxx X. Xxxxxx ceases to be employed by Buyer by virtue of his resignation without “Good Reason” (as such term is defined in his Employment Agreement with Buyer) or by a termination by Buyer with Cause (as defined in Appendix I), twenty percent (20%) of the Earn-Out Payment for such periodthat Earn-Out Period and twenty percent (20%) of any Earn-Out Payment for all remaining Earn-Out Periods will be forfeited, and (iii) depreciation expenseif at any time during the 12-month Earn-Out period Xxxxxxx X. Means ceases to be employed by Buyer by virtue of his resignation without “Good Reason” (as defined in the Means Agreement) or by a termination by Buyer with Cause (as defined in Appendix I), amortization expense thirty percent (30%) of the Earn-Out Payment for that Earn-Out Period and other nonthirty percent (30%) of any Earn-cash expenses Out Payment for such period, in each case, measured in accordance with GAAPall remaining Earn-Out Periods will be forfeited.

Earn-Out. (a) As additional consideration for the Purchased Membership Interests, at such times as provided in Section 2.5(e), Purchaser shall pay to Sellers with respect to each of the two Calculation Periods within the Earn-Out Period an amount (each, an “Earn-Out Payment”), if any, equal to the product of (i) As soon an amount equal to (A) the EBITDA for such Calculation Period, minus (B) the EBITDA Threshold for such Calculation Period; multiplied by (ii) the Earn-Out Multiple. If the EBITDA for a particular Calculation Period does not exceed the applicable EBITDA Threshold, no Earn-out Payment shall be due for such Calculation Period. (b) Upon any acquisition of an asset or business by the Acquired Companies or a restructuring of the Acquired Companies as practicable after June 30permitted by Section 2.5(f), 2008, orthe Parties shall negotiate in good faith to determine whether the results of operations of such asset or business (or any change resulting from such restructuring) shall be included in the computation of EBITDA for any Calculation Period and, if soonerso, the appropriate change to the EBITDA, if any. Without prior agreement of the Parties, there shall be no change to the EBITDA Threshold for such Calculation Period. Notwithstanding any decision made by the Parties with respect to the preceding sentence, any Seller employed or engaged as a consultant by Purchaser and its Affiliates shall manage, operate or otherwise provide services to any asset or business acquired that is within the operational knowledge and experience of any Seller so employed or engaged after the Closing Date, as soon as practicable requested by Purchaser. The EBITDA for any Calculation Period shall not be increased or diminished by revenues earned or costs or expenses incurred on direction of Purchaser and its Affiliates in the acquisition or operation of any asset or business acquired without the agreement of Sellers. (c) On or before the date that is sixty (60) days after a Sales Event the last day of each of the two Calculation Periods (as hereinafter definedeach such date, an “Earn-Out Calculation Delivery Date”), Buyer Purchaser shall prepare and deliver to the Representative Sellers a written statement (in each case, an “Earn-Out Calculation Statement”) setting forth in reasonable detail its determination of EBITDA for the applicable Calculation Period and its calculation of the resulting Earn-Out Payment (as defined in Section 3(e)(v) below) (the each case, an “Statement of EBITDAEarn-Out Calculation”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from ). Purchaser shall provide Sellers and after July 1, 2007, through the Business Day immediately preceding the closing date their Representatives copies of such Sales Event records and work papers used or created in connection with preparation of each Earn-Out Calculation Statement that are reasonably required to support such Earn-Out Calculation Statement. Such records and work papers shall be held in confidence by Sellers and their Representatives and not used for any purpose except in connection with the calculation of EBITDA and the related Earn-Out Payment and the resolution of any dispute arising with respect thereto. (d) Sellers shall have thirty (30) days after receipt of the Earn-Out Calculation Statement for each Calculation Period (in each case, the “Measurement Review Period”) (including to review the portionEarn-Out Calculation Statement and the Earn-Out Calculation set forth therein. During the Review Period, if any, of the Measurement Period occurring prior to the Closing Date) Sellers and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative their Representatives shall have the right to dispute inspect the Statement Purchaser’s Books and Records related to the Business during normal business hours at Purchaser’s offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below the resulting Earn-Out Payment. Prior to the expiration of the Review Period, Seller may object to the Earn-Out Calculation set forth in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Earn-Out Calculation Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement applicable Calculation Period by delivering a written notice of objection (including an “Earn-Out Calculation Objection Notice”) to Purchaser. Any Earn-Out Calculation Objection Notice shall specify the portionitems in the applicable Earn-Out Calculation disputed by Sellers and shall describe in reasonable detail the basis for such objection, if any, as well as the amount in dispute and Sellers’ calculation of the Measurement Period occurring each item in dispute. If Sellers fail to deliver an Earn-Out Calculation Objection Notice to Purchaser prior to the Closing Date) is equal to or greater than ****************************** ********** (expiration of the “Required EBITDA Amount”)Review Period, then Buyer shall promptly pay the Earn Earn-Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts Calculation set forth in Sections 2(a)(ii)(A) the Earn-Out Calculation Statement shall be final and 2(a)(ii)(B)binding on the parties hereto. If Sellers timely deliver an Earn-Out Calculation Objection Notice, respectively, multiplied by (2) a fraction, where Purchaser and Sellers shall negotiate in good faith to resolve the numerator shall equal disputed items and agree upon the resulting amount of the EBITDA and the Earn-Out Payment for the Measurement Period applicable Calculation Period. If Purchaser and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation Sellers are unable to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP reach agreement within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; providedsuch an Earn-Out Calculation Objection Notice has been given, however, that the dispute resolution procedures set forth below will only apply all unresolved disputed items shall be promptly referred to the Statement of EBITDA delivered pursuant to Section 3(e)(i) aboveAccounting Firm. The Representative Accounting Firm shall have until thirty (30) days after be directed to render a written report on the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions unresolved disputed items with respect to the Statement of EBITDA applicable Earn-Out Calculation as promptly as practicable, but in no event greater than sixty (60) days after such submission to the Accounting Firm, and their respective calculation of EBITDA for to resolve only those unresolved disputed items set forth in the Earn-Out Calculation Objection Notice. If unresolved disputed items are submitted to the Accounting Firm, Purchaser and Sellers shall each furnish to the Accounting Firm such work papers, schedules and other documents and information relating to the unresolved disputed items as the Accounting Firm may reasonably request. The Accounting Firm shall resolve the disputed items based solely on the applicable Measurement Perioddefinitions and other terms in this Agreement and the presentations by Purchaser and Sellers, together with such supporting documentation and not by independent review. In resolving the dispute, the Accounting Firm, acting in the capacity of an expert and not as they deem necessary or as an arbitrator, shall (i) limit its review to matters specifically set forth in the Independent Accountant requestsEarn-Out Calculation Objection notice (other than matters thereafter resolved by mutual written agreement of Purchaser and Sellers), and (ii) not assign a value to any item greater than the Independent Accountant shallgreatest value for such item or less than the smallest value for such item, within thirty (30) days after receiving in each case, claimed by Purchaser in the positions Earn-Out Calculation or Sellers in the Earn-Out Calculation Objection, as applicable. The resolution of both the Representative dispute and Buyer and all supplementary supporting documentation requested the calculation of EBITDA that is the subject of the applicable Earn-Out Calculation Objection Notice by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision Accounting Firm shall be final and binding on, and nonappealable by, on the Representative and Buyerparties hereto. The fees and expenses of the Independent Accountant Accounting Firm shall be paid one-half borne by the Sellers and one-half Purchaser in proportion to the amounts by Buyer; provided, however, that if which their respective calculations of EBITDA for the applicable Measurement Period differ from EBITDA as finally determined by the Independent Account and set forth in the Settlement Amount Certificate Accounting Firm. (defined belowe) Subject to Section 2.5(g), any Earn-Out Payment that Purchaser is closer required to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to Section 2.5(a) hereof shall be paid in full no later than thirty (30) Business Days following the preceding clause (i), but shall ultimately be derived solely from date upon which the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision determination of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Calculation Period becomes final and binding upon the parties as provided in Section 2.01(c) (including any final resolution of any dispute raised by Sellers in an Earn-Out Calculation Objection Notice). Purchaser shall pay to Sellers the “Settlement Amount Certificate”)applicable Earn-Out Payment in cash by wire transfer of immediately available funds to the bank account(s) for Sellers designated by the Sellers. (vf) For purposes Subject to the terms of this Section 3(e)Agreement, “EBITDA” subsequent to the Closing, Purchaser shall mean have sole discretion with regard to all matters relating to the sum of net income operation of the Company for Business of the Measurement Period plus (Acquired Companies, including, but not limited to, restructuring the Acquired Companies; provided, that Purchaser shall not, directly or indirectly, take any actions in bad faith that would have the purpose of avoiding or reducing any of the Earn-Out Payments hereunder. Notwithstanding the foregoing, Purchaser has no obligation to operate the extent deducted Business of the Acquired Companies in determining order to achieve any Earn-Out Payment or to maximize the Company’s net income) amount of any Earn-Out Payment. Sellers acknowledge that (i) there is no assurance that Sellers will receive any Earn-Out Payment and Purchaser has not promised or projected any Earn-Out Payment, and (ii) the parties solely intend the express provisions of this Agreement to govern their contractual relationship. (g) Purchaser shall have the right to withhold and set off against any amount otherwise due to be paid pursuant to this Section 2.5 the amount of (i) any Damages, as finally determined in accordance with the provisions of Article 8, to which any Purchaser Indemnified Party may be entitled and (ii) any other amounts due Purchaser from Sellers. (h) The Parties understand and agree that (i) the contingent rights to receive any Earn-Out Payment shall not be represented by any form of certificate or other instrument, are not transferable, except by operation of Laws relating to descent and distribution, divorce and community property, and do not constitute an equity or ownership interest expense for such periodin Purchaser or the Acquired Companies, (ii) income tax expense for such periodSellers shall not have any rights as a securityholder of Purchaser or the Acquired Companies as a result of Sellers’ contingent right to receive any Earn-Out Payment hereunder, and (iii) depreciation expense, amortization expense and other nonno interest is payable with respect to any Earn-cash expenses for such period, in each case, measured in accordance with GAAPOut Payment.

Earn-Out. (a) As additional consideration for the purchase of the Shares, Buyer shall pay Sellers contingent payments (the “Earn-Out Payments”) as determined pursuant to this Section 2.9 at the times, in the manner and to the extent Earn-Out Payments are earned pursuant to the following terms: (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver with respect to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of Company’s 2009 EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date 50% of such Sales Event EBITDA in excess of Forty Million and NO/100ths Dollars (in each case, the “Measurement Period”$40,000,000) (including the portion, if any, of the Measurement Period occurring prior will be paid to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below.Sellers; and (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of Company’s 2010 EBITDA, that 50% of such EBITDA for the Measurement Period in excess of Forty Million and NO/100ths Dollars (including the portion, if any, of the Measurement Period occurring prior to the Closing Date$40,000,000) is less than the ***% Threshold, then no Earn Out shall will be due and Buyer shall have no obligation to pay all or any portion of the Earn Out paid to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30Notwithstanding the foregoing, 2008, Buyer sells the Company or all or substantially all of if the Company’s assets to a third party EBITDA for 2009 is negative (other i.e. less than an Affiliate of Buyer) (a “Sales Event”zero), and (B) it is determined, after completion for purposes of determining the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively2010 Earn-Out Payment, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to BuyerCompany’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out 2010 EBITDA shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of reduced by the Earn Out to Sellersamount by which the Company’s 2009 EBITDA was less than zero. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (vb) For purposes of this Section 3(e)2.9, “EBITDA” shall mean means for calendar year 2009 or calendar year 2010 the sum of (A) the net income or loss generated by the Company’s operations as they exist on the Effective Date and as they may grow or contract after the Effective Date in the normal course of business through internal growth and not through acquisitions or other extraordinary or non-recurring transactions (the “Existing Operations”), after deduction of all costs, expenses, interest, taxes, depreciation, amortization, and other proper charges (including without limitation (i) the cost of any bonuses or incentive payments earned with respect to the applicable period (excluding any Earn-Out Payment), (ii) the cost of any equity granted to employees (other than equity granted to the employees pursuant to the employment agreements to be entered into pursuant to Section 8.9 hereof), or other derivative securities granted during the applicable period, valued in accordance with the Xxxxx-Xxxxxx model and amortized over the vesting period of any equity granted, (iii) the cost of capitalized leases, amortized over the lease term, calculated in accordance with GAAP and (iv) all interest and amortization with respect to the Company’s Indebtedness) plus (B) (i) total interest expense with respect to all outstanding Indebtedness of the Company for the Measurement Period plus (Company, but only to the extent that such interest was deducted in determining the Company’s net income) (i) interest expense for such periodincome or loss, (ii) federal, state, or local income tax expense for such period, taxes and (iii) depreciation expense, amortization expense state franchise taxes to the extent calculated based upon net income and other non-cash expenses for such periodnot revenue, in each case, measured case of income and franchise taxes attributable to the Existing Operations for such period and determined in accordance with GAAP, but only to the extent that such taxes were deducted in determining the Company’s net income or loss, (iii) all depreciation with respect to the Company’s assets, but only to the extent that such depreciation was deducted in determining the Company’s net income or loss, (iv) all amortization, but only to the extent that such amortization was deducted in determining the Company’s net income or loss, and (v) any retention bonus payments paid to employees of the Company pursuant to those retention bonus agreements set forth in Section 4.14(i) of the Sellers’ Disclosure Schedule to the extent that such bonuses were deducted in determining the Company’s net income or loss; provided that no deduction shall be made for overhead expenses of Buyer or its Affiliates other than for services and other expenses provided by Buyer and its Affiliates to the Existing Operations such as group insurance policies which cover the Existing Operations, legal, human resources, accounting or other services provided to the Existing Operations.

Earn-Out. (ia) As soon as practicable after June 30Earn-Out Shares. In the event Pacific Magtron, 2008, or, if sooner, as soon as practicable after a Sales Event Inc. (as hereinafter defined"PMI"), Buyer shall prepare Pacific Magtron (GA), Inc. ("PMI-GA"), and deliver to LiveWarehouse, Inc. ("LW") achieve the Representative a statement of EBITDA Milestones (as defined in Section 3(e)(v) 4.3 below) for any year during the two (the “Statement of EBITDA”2) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the year period from and after July commencing January 1, 20072005 and expiring December 31, through the Business Day immediately preceding the closing date of such Sales Event (in each case2006, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative Executive shall have the right to dispute receive on March 31 of the Statement immediately following calendar year, the applicable ratable portion of EBITDA 33,333,333 shares of restricted common stock of ACT (and any items therein) as provided priced at $.01 per share, or $333,333 in Section 3(e)(iv) below. the aggregate), to be earned at the end of each such year at the rate of 50% for each year (ii) Except as provided in Section 3(e)(iii) below the "Shares"); provided, that in the event the Milestones are not achieved in any year, except as provided below, such ratable portion of Shares shall be forfeited entirely, without any ability to re-earn such Shares in a Sales Event future year; provided further, that in the event Executive's employment with PMIC is terminated for "cause" by PMIC (as hereinafter definedcontemplated by Section 6.1 of this Agreement) prior to June 30, 2008, if it is determined, after completion the expiration of the Statement of EBITDAinitial Employment Period, and after completion all of the time and procedure described in Section 3(e)(iv) below if Representative disputes Shares earned or to be earned by Executive shall be forfeited. In the Statement of EBITDA, event that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring Executive's employment with PMIC is terminated prior to the Closing Date) is equal expiration of the initial Employment Period for any reason other than "cause," Executive shall be permitted to or greater than ****************************** ********** receive the Shares earned by her prior to such termination, but shall in no event be entitled to receive Shares to be earned after the Termination Date (as defined in Section 6.1 below). Notwithstanding the “Required EBITDA Amount”)foregoing, then Buyer the number of Shares and the price per Share shall promptly pay be adjusted accordingly for stock splits, reverse stock splits and other recapitalizations effected by ACT, so that Executive retains the Earn Out right to Sellersreceive, subject after accounting for such adjustment, the same percentage of ACT's outstanding shares of Common Stock as Executive would have had the right to Buyer’s rights under Sections 2(b) receive had such adjustment not been so effected. Upon earning the Shares at the end of each year, if applicable, the Shares will be placed in escrow with a mutually agreeable escrow agent to be held and 15(f)released in accordance with the terms of an escrow agreement in substantially the form of Exhibit "A" hereto; provided, however, that if it in the event that the employment of Executive is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring terminated by PMIC prior to the Closing Date) expiration of the initial Employment Period without cause (as contemplated by Section 6.2 of this Agreement), Executive terminates this Agreement for Good Reason (as contemplated by Section 6.3 of this Agreement), or this Agreement is less terminated due to Executive's death or Disability (as defined below), Executive shall receive any Shares earned by her no later than the Required EBITDA Amount and equal to or greater than ****** percent later of (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1a) the applicable amounts set forth in Sections 2(a)(ii)(Aimmediately following March 31 or (b) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of Termination Date. Upon release from escrow, the first three fiscal quarters during the Measurement Period; providedShares will include piggyback registration rights, however, that the dispute resolution procedures set forth below will only apply subject to the Statement of EBITDA delivered pursuant to Section 3(e)(i) abovecustomary underwriters' cutbacks. The Representative shall have until thirty (30) days after the Upon receipt of the Statement Shares, Executive will acquire the Shares for her own account and not with a view to their distribution within the meaning of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10Section 2(11) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; providedSecurities Act of 1933, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth amended. Executive is an "accredited investor," as such term is defined in the Settlement Amount Certificate (defined belowRule 501(a) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer promulgated pursuant to the preceding clause (i)Securities Act of 1933, but shall ultimately be derived solely from as amended. Executive acknowledges that Executive has had the Company’s financial statements used opportunity to produce Buyer’s financial statements filed with ask questions of and receive answers from, or obtain additional information from, the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income executive officers of the Company for concerning the Measurement Period plus (financial and other affairs of the Company, and to the extent deducted deemed necessary in determining light of such personal knowledge of the Company’s net income) (i) interest expense for 's affairs, Executive has asked such period, (ii) income tax expense for questions and received answers to the full satisfaction of Executive. Executive understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness of suitability of the investment in the Shares nor have such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such periodauthorities passed upon or endorsed the merits of the offering of the Shares. Notwithstanding the foregoing, in each casethe event that the Milestones are not achieved in a given year, measured the Board of Directors of ACT shall have the right, in accordance with GAAPits sole and absolute discretion, to grant to Executive all or a portion of the Shares that could have been earned by Executive during such year.

Earn-Out. (a) At the earlier to occur of the (a) end of any consecutive twelve month period within the three year period after Closing that results in the payment of $6,800,000 (the “Maximum Additional Payment”) to the Seller pursuant to the calculations of the Additional Payment set forth in this Section 5.4 and (b) three years after the Closing Date (the “Earn-Out Period”), Purchaser shall provide a calculation to the Seller based on the consecutive twelve month period within the three year period (“Optimal Period”) after Closing that results in the largest payment possible to the Seller pursuant to this Section 5.4 (the “Additional Payment”), setting forth an amount equal to the amount (such amount, the “Target Difference”) obtained by (a) the product obtained by multiplying (i) As soon as practicable after June 30the quantity of Coal A sold, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for tons, by Alden Resources during such Optimal Period by (xii) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portionamount, if any, by which the 2010 Cost of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15Production, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data calculated as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** $103.20 per ton (the “Required EBITDA 2010 Cost of Production”), exceeds the per ton Cost of Production of Coal A sold by Alden Resources during such Optimal Period less (b) $1,000,000 (the “Earn-Out Calculation Base Amount”). If the Target Difference is less than $3,000,000 (the “Earn-Out Threshold”), then Buyer the Additional Payment shall promptly pay equal $0.00. If the Earn Target Difference is greater than or equal to the Earn-Out Threshold, then the Additional Payment shall equal the product obtained by multiplying (a) the Maximum Additional Payment by (b) a fraction, (i) the numerator of which shall be equal to Sellers, subject to Buyer’s rights under Sections 2(bthe Target Difference less the Earn-Out Threshold and (ii) and 15(fthe denominator of which shall be 8,000,000 (the “Earn-Out Calculation Denominator”); provided, however, that if it is determinedin no event shall the Additional Payment, together with any Partial Disposition Payment, exceed the Maximum Additional Payment. (b) Within 15 days after completion receipt of the Statement calculation of EBITDAthe Additional Payment, the Seller will deliver to the Purchaser a written statement describing its questions or objections to the calculation of the Additional Payment (if any). If the Seller does not raise any questions or objections within such period, Purchaser shall pay the Seller in immediately available funds within 3 Business Days the Additional Payment and the Additional Payment shall become final and binding upon all of the Parties. If the Seller does raise any such questions or objections, the Purchaser and the Seller and their respective accountants shall attempt to resolve such matters (and all non-disputed matters shall be deemed agreed) within 30 days after receipt of the same by the Purchaser, and after completion if unable to do so, the Purchaser and the Seller shall refer all remaining disputes concerning the calculation of the Additional Payment to the Independent Accounting Firm (or another nationally recognized independent accounting firm reasonably acceptable to the Purchaser and the Seller), which shall be instructed to resolve such disputes within 60 days of the referral. The Purchaser will make available to the Independent Accounting Firm at reasonable times and upon reasonable notice at any time during the pendency of any dispute under this Section 5.4 the work papers and procedure described back-up materials used in preparing the calculation of the Additional Payment and the books and records of Alden Resources. The Purchaser and the Seller shall have the right to meet jointly with the Independent Accounting Firm during this period and to present their respective positions. The resolution of disputes by the Independent Accounting Firm and its determination of the Additional Payment will be (i) determined in accordance with the terms of this Agreement, (ii) set forth in writing and (iii) conclusive and binding upon the Parties. The determination of the Additional Payment by the Independent Accounting Firm will become final and binding upon the date of such resolution. (c) The Purchaser will make available to the Seller and its accountants and other representatives in a reasonable manner, at reasonable times and upon reasonable notice (and copies thereof at the Seller’s sole cost and expense) at any time during (i) the review by the Seller of the calculation of the Additional Payment and (ii) the pendency of any dispute under Section 3(e)(iv5.4 the work papers and back-up materials used in preparing the calculation of the Additional Payment. Until any dispute under Section 5.4 is resolved, the Purchaser will keep these materials in its principal business office. (d) below if Representative disputes The Seller and the Statement of EBITDA, that EBITDA for the Measurement Period Purchaser will each pay their own fees and expenses (including any fees and expenses of their accountants and other representatives) in connection with the portion, if any, determination of the Measurement Period occurring Additional Payment and shall each pay 50% of the Independent Accounting firm’s fees. (e) Following the determination of the Additional Payment under this Section 5.4 (the “Final Adjusted Payment”), the Purchaser shall pay to the Seller, in immediately available funds within 3 Business Days of the determination of the Final Adjusted Payment. (f) During the Earn-Out Period, the Purchaser shall cause Alden Resources (i) not to take actions which are specifically taken to reduce the amount of the Additional Payment, and (ii) to maintain a reasonable level of employees or outside contractors and to take such other prudent measures to operate Alden Resources. (g) If Alden Resources is subject to a Disposition prior to the Closing Date) is less than end of the Required EBITDA Amount and equal Earn-Out Period pursuant to or which the Purchaser achieves an IRR greater than ****** percent (***%) of 20% per annum and the Required EBITDA Amount (Purchaser has not paid the “***% Threshold”)Additional Payment, then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly the Purchaser shall pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount proceeds from such Disposition equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion product of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, 50% and (ii) the Independent Accountant shall, within thirty (30) days after receiving Purchaser Receipts in excess of the positions Purchaser Receipts necessary to achieve an IRR of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as 20% per annum to the Statement Purchaser, in immediately available funds within 3 Business Days of EBITDAthe consummation of the Disposition. If Alden Resources is subject to a Partial Disposition prior to the end of the Earn-Out Period and the Purchaser has not paid the Additional Payment, which decision the Target Difference shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half equal to an amount obtained by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause adding (i)) the product obtained by multiplying (1) the quantity of Coal A sold, but shall ultimately be derived solely from measured in tons, by Alden Resources during the Company’s financial statements used to produce Buyer’s financial statements filed with Optimal Period, plus the SEC for quantity of Coal B sold, measured in tons, during the fiscal period(sOptimal Period by (2) covering the relevant Measurement Period. The decision amount, if any, by which the 2010 Cost of Production exceeds the Independent Accountant shall also include a certificate per ton Cost of Production of Coal A sold by Alden Resources during the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Optimal Period (without calculating the “Settlement Amount Certificate”)costs pertaining to Coal B) less the Earn-Out Calculation Base Amount. (vh) For purposes of this Section 3(e)Subject to compliance with applicable Law, “EBITDA” shall mean during the sum of net income Earn-Out Period, the Purchaser shall, if reasonably requested by Seller no greater than one time every fiscal quarter, report on operational and financial matters affecting the potential amount of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAPAdditional Payment.

Earn-Out. (i) As soon Seller shall be entitled to receive the Earn-Out Amount, as practicable after June 30, 2008, orfinally determined in accordance with this Section 1.6, if soonerany, as soon as practicable after a Sales Event deferred payment of additional Purchase Price, pursuant to the terms and conditions set forth below: (as hereinafter defined)a) No later than January 31, 2014, Buyer shall prepare and deliver to the Representative Seller a statement of EBITDA (as defined in Section 3(e)(v) below) report (the “Statement Proposed Earn-Out Determination Report”), together with reasonable supporting documentation, setting forth the calculation as of EBITDA”) measured in U.S. dollars for December 31, 2013 of the total Monthly Recurring Revenue from (xi) the twelve existing customers of the ITO Business listed on Schedule 1.6(a) hereto (12such customers and their successors and permitted assigns, collectively the “Existing Customers”), (ii) calendar months ending June 30any services Seller or any of its Affiliates purchase directly from Buyer or its Affiliates for use by Seller or any of its Affiliates, 2008 (iii) Seller or (y) in the event any of a Sales Event prior to June 30, 2008, the period its Affiliates’ resale of services of Buyer or its Affiliates from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each casethis Agreement pursuant to that certain Master Services and Reseller Agreement, the “Measurement Period”) (including the portionby and between Savvis Communications Corporation and Seller, if anydated July 14, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** 2011 (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales EventMSRA”), and (Biv) it the Monthly Recurring Revenue of Buyer under the Subcontract; provided that any Monthly Recurring Revenue related to Existing Customers that is determined, after completion included under clause (i) shall only be included for purposes of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period clause (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((Ai) and not duplicated for purposes of clause (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”iii), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (ivb) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty Seller shall have ninety (3090) days after (the end of each of the first three fiscal quarters during the Measurement “Review Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i”) above. The Representative shall have until thirty (30) days after the following receipt of the Statement of EBITDA Proposed Earn-Out Determination Report during which to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their any dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer any item (the “Independent AccountantDisputed Item”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant contained in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDAProposed Earn-Out Determination Report, which decision notice shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account identify each Disputed Item and set forth in reasonable detail the Settlement Amount Certificate (defined below) is closer basis for Seller’s dispute with respect to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period such Disputed Item (the “Settlement Amount CertificateObjection Notice”). . During the Review Period, Seller and its respective representatives, including their accounting advisors (vcollectively, “Seller and Seller’s Advisors”) For purposes of shall have reasonable access during normal business hours (and until such time as the Proposed Earn-Out Determination Report is deemed the Final Earn-Out Determination Report pursuant to this Section 3(e1.6), “EBITDA” to all records, working papers and other information relating to the Proposed Earn-Out Determination Report and its preparation. Such access shall mean include, but not be limited to, any such records, working papers and other information prepared by accountants and other advisors to assist Buyer in the sum of net income preparation or review of the Company for Proposed Earn-Out Determination Report (provided that Seller and Seller’s Advisors agree to customary and reasonable confidentiality restrictions with respect thereto) and, where reasonable, the Measurement Period plus (right to take copies of all such documentary material, along with such other information and assistance as the Seller and Seller’s Advisors may reasonably request, including access to Buyer’s employees and advisors. To the extent deducted in determining the CompanySeller and Seller’s net income) (i) interest expense Advisors require access to Buyer’s employees, advisors and premises for such periodpurpose, (ii) income tax expense for such periodSeller and Sellers’ Advisors shall first contact Jens Teagan, Vice President of Corporate Development at Savvis Inc. or his designate or as otherwise directed in writing by Seller, and coordinate such access with him or her. At any time during the Review Period, Seller shall be entitled to agree with any or all of the items set forth in Proposed Earn-Out Determination Report. To the extent Seller believes, at any time during the Review Period, that Buyer has failed to fulfill its disclosure and access obligations under this Section 1.6(b), Seller may bring an Action against Buyer seeking equitable remedies (iiiincluding specific performance or injunctive relief) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.with

Earn-Out. As additional consideration for the Purchased Assets, for a period of three years following the first day of the month immediately following the Closing (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter definedthe "Earn Out Period"), Buyer shall prepare and deliver pay to the Representative a statement of EBITDA Escrow Agent or Seller (as defined in Section 3(e)(v) set forth below) an amount equal to 25% of the annual EBITDA generated by Buyer after the Closing (whether Buyer is operating out of the Leased Real Property or otherwise) from the Existing Suppliers up to a maximum of $300,000 per year (the “Statement "Earn Out Payments"). The amount of EBITDA”) measured each Earn Out Payment shall be determined in U.S. dollars accordance with GAAP and MTLM's reasonable standard accounting practices, consistently applied (it being understood that the calculation of EBIDTA for (x) the twelve (12) calendar months ending June 30purposes of determining each Earn Out Payment shall include a reasonable allocation of certain general and administrative expenses incurred by Metal Management Northeast, 2008 or (y) in the event Inc. but shall not include an allocation of a Sales Event prior to June 30any general and administrative expenses incurred by Metal Management, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portionInc.). The Earn Out Payments, if any, for the first two years of the Measurement Earn Out Period occurring prior shall be paid by Buyer to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to Escrow Agent no later than the Representative 45th day after the Statement of EBITDA by August 15, 2008, in the case end of the preceding clause (x), and within 20 Business Days after applicable one-year period. The Earn Out Payment for the Sales Event, in the case third year of the preceding clause Earn Out Period shall be paid as follows: (y). a) if at the end of the third year of the Earn Out Period Buyer shall also make available has asserted a claim for indemnification pursuant to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA Section 12.3 which has not been resolved (and any items therein) as provided which claim is in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion excess of the Statement of EBITDA, and after completion of the time and procedure described amount then held in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”Escrow), then Buyer shall promptly pay to (i) the Escrow Agent the amount of the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portionPayment, if any, that is necessary to cause the aggregate amount of the Measurement Period occurring prior Escrow to equal $600,000 (if the Closing Date) aggregate amount of the Escrow is at such time less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b$600,000) and 15(f), promptly pay a portion (ii) Seller the remainder of the Earn Out payable in cash Payment and a portion (b) if at the end of the third year of the Earn Out payable in shares of Period Buyer Common Stockhas not asserted a claim for indemnification pursuant to Section 12.3 which has not been resolved, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon then Buyer shall have no further obligation make the final Earn Out Payment directly to pay any remaining portion Seller. 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 with reasonable access to those of its books and records which are relevant to the determination of the Earn Out Payments for the purpose of allowing Seller to Sellers; and provided furtherverify the accuracy of Buyer's determination thereof. It is expressly understood that, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect subsequent to the omitted portions. procedure described Closing, Buyer shall in Section 3(e)(iv) below if Representative disputes all respects have complete authority and control over the Statement Business and its manner of EBITDAoperation, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior ability to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay 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 Sellersthis Section 3.2 shall be subject to Buyer's authority, except as provided in Section 3(e)(iii) below. (iii) If (A) prior control, ability and discretion contemplated by the previous sentence. Buyer and its Affiliates shall be under no obligation whatsoever to June 30, 2008, Buyer sells operate the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior Business subsequent to the Closing Date) through in a manner that does not reduce or eliminate the Business Day immediately preceding the closing date possibility of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay Seller receiving all or any portion of the any Earn Out to SellersPayments. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. In addition to the Purchase Price, and subject to a right of offset for the amount of any chargeback issued by a Licensee for the periods prior to Closing, Buyer shall pay to Seller an aggregate earn-out of up to Nine Hundred Thousand Dollars ($900,000) which earn-out shall be payable upon achievement of the following thresholds: (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver If Gross Revenues attributable to the Representative a statement of EBITDA four (as defined in Section 3(e)(v4) below) month period commencing September 1, 2012 and ending December 31, 2012 (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement First Earn-Out Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is are equal to or greater than ****************************** ********** Eight Hundred and Fifty Thousand Dollars ($850,000), then as additional consideration for the Purchased Assets purchased from Seller, Buyer shall make, or cause to be made, a cash payment of Four Hundred Thousand Dollars ($400,000) (the “Required EBITDA AmountFirst Earn-Out Payment”), then Buyer shall promptly pay ) to Seller within the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(bearlier of (i) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by two (2) a fraction, where weeks after the numerator shall equal EBITDA receipt of any information from Licensee(s) that would allow Buyer the ability to determine that the threshold for the Measurement Period and payment the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn First Earn-Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page Payment has been omitted and filed separately with reached or (ii) March 31, 2013 (in which event the CommissionFirst Earn-Out Payment shall be deemed due). Confidential treatment has been requested with respect For clarification, if Gross Revenues attributable to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDAFirst Earn-Out Period do not equal or exceed Eight Hundred and Fifty Thousand Dollars ($850,000), that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or make any portion of the Earn Out earn-out payment to Sellers, except as provided in Seller pursuant to this Section 3(e)(iii) below2.3(d)(i). (iiiii) If In addition to the payment due pursuant to subsection (Ai) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portionabove, if any, of the Measurement Period occurring prior Gross Revenues attributable to the Closing Datetwelve (12) through month period commencing January 1, 2013 and ending December 31, 2013 (the Business Day immediately preceding “Second Earn-Out Period” and collectively with the closing date of such Sales Event is First Earn Out-Period, each and collectively, as the context may require, “Earn Out Periods”) are equal to or greater than Two Million Seven Hundred and Fifty Thousand Dollars ($2,750,000), then as additional consideration for the applicable U.S. dollar amount set forth on Schedule 3(e)(iiiPurchased Assets purchased from Seller, Buyer shall make, or cause to be made, a cash payment of Five Hundred Thousand Dollars ($500,000) ((A) the “Second Earn-Out Payment”, and (B) being, collectivelycollectively with the First Earn-Out Payment, the “PostEarn-Closing Earn Out Conditions Following a Sales EventPayments”) to Seller within the earlier of (i) two (2) weeks after the receipt of any information from Licensee(s) that would allow Buyer the ability to determine that the threshold for the payment the Second Earn-Out Payment has been reached or (ii) March 31, 2014 (in which event the Second Earn-Out Payment shall be deemed due). For clarification, if Gross Revenues during the Second Earn-Out Period do not equal or exceed Two Million Seven Hundred and Fifty Thousand Dollars ($2,750,000), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under to make any earn-out payment to Seller pursuant to this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers.2.3(d)(ii) (iviii) As used herein, “Gross Revenue” shall mean all amounts due to Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized from Licensees in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions Canada with respect to the Statement managing, marketing, advertising and licensing of EBITDA the Purchased Assets, including but not limited to, GMR payments and their respective calculation of EBITDA royalty payments based on net sales (calculated prior to any reduction for the applicable Measurement Period, together with design fees/chargebacks or other such supporting documentation items) as they deem necessary or as the Independent Accountant requestsdefined in each underlying License Agreement, and (ii) the Independent Accountant shallwith respect to royalty payments based on net sales, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision such royalties shall be final and binding on, and nonappealable by, deemed due on the Representative and Buyer. The fees and expenses of the Independent Accountant shall be date each such sale is made (notwithstanding when actual payment is due and/or paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”each such Licensee). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (a) Subject to the provisions of this Section ‎2.7, Xcel shall be entitled to receive $2,000,000 of additional consideration (the “Earn-Out Amount”) from Buyer if both of the following are achieved during the period from January 1, 2023, through December 31, 2023, inclusive: (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA (as defined Company receives Net Royalty Revenue in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is an amount equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests$17,500,000, and (ii) the Independent Accountant shallCompany generates EBITDA in an amount equal to or greater than $11,800,000 (conditions (i) and (ii) collectively, within thirty the “Earn-Out Event”). Buyer shall promptly notify Seller if the Earn-Out Event has been achieved. If either condition constituting the Earn-Out Event is not met, the Earn-Out Amount will not be due and payable. If the Earn-Out Event does not occur on or prior to December 31, 2023, the Earn-Out Amount will not be due and payable. If the Earn-Out Amount becomes due and payable, Buyer shall pay, or cause to be paid, the Earn-Out Amount to Xcel on or before February 15, 2024, by wire transfer of immediately available funds to the account designated by Xcel. (30b) days after receiving In the positions event that, notwithstanding the fact that Buyer has not provided Seller notice of both achievement of the Representative Earn-Out Event as provided in Section ‎‎2.7(a), Seller believes that the Earn-Out Event has been achieved by the Company, then Seller shall so notify Buyer in writing and Buyer and all supplementary supporting documentation requested Seller shall attempt to resolve such dispute by good faith negotiations during a period of 30 days. If Seller and Buyer are unable to resolve such dispute within such 30-day period, then either Seller or Buyer may commence arbitration proceedings within 30 days of the Independent Accountant, render its decision as end of such 30-day period by making a written request to the Statement American Arbitration Association, together with any appropriate filing fee. Such arbitration shall be conducted exclusively in New York, New York, before an arbitral tribunal of EBITDAbetween one and three arbitrators as Seller and Buyer agree. If such Parties cannot agree on the number of arbitrators, which decision there shall be three arbitrators. The arbitrator(s) shall be disinterested, shall have knowledge of the legal, financial, corporate and technical issues relevant to the matters in dispute and shall otherwise be chosen in the manner provided in the AAA arbitral rules. Any order or determination of the arbitration shall be final and binding onupon the parties to the arbitration. Any arbitration award shall not include attorney’s fees or other costs, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant each party shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of share equally the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant owed to the preceding clause arbitrator(s). Notwithstanding any provision in this Agreement to the contrary, each Party shall be entitled to institute litigation in accordance with Section ‎11.12 immediately if litigation is necessary to prevent irreparable harm to that Party. (c) The right to receive any potential Earn-Out Amount (i)) is solely a contractual right and is not a security for purposes of any federal or state securities Laws, but shall ultimately (ii) will not be derived solely from represented by any form of certificate or instrument, (iii) does not give, directly or indirectly, Seller any rights as an equity holder of, or rights to acquire any equity of, the Company’s financial statements used , Buyer or any of their Affiliates, including any distribution rights, voting rights, liquidation rights, preemptive rights, anti-dilution rights or other rights common to produce Buyer’s financial statements filed holders of equity securities, (iv) is not redeemable and (v) may not be transferred, except with the SEC for the fiscal period(sconsent of Buyer or by operation of Law (and any transfer or assignment in violation of this Section ‎‎2.7(c) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”be null and void ab initio). (vd) For purposes of this Section 3(eDuring the period beginning on the Closing Date and ending on January 31, 2023 (the “Earn-Out Period”), “EBITDA” subject to each of (x) the Joint Venture Agreement, (y) the Design, Interactive Television, and Talent Services Agreement and (z) the Brand Support Services Agreement, Buyer shall mean have sole discretion with regard to all matters relating to the sum of net income operation of the Company for Company, provided, that, during the Measurement Period plus (Earn-Out Period, Buyer shall, and shall cause any of its Affiliates to the extent deducted in determining the Company’s net income) (i) interest expense for such period, use commercially reasonable efforts to operate and support the Company; (ii) income tax expense for such periodact in good faith and not take any action, and or refrain from taking any action, that it is reasonably highly likely to cause the Earn-Out Event not to occur; (iii) depreciation expensematerially breach, amortization expense and other non-cash expenses for such periodterminate or materially amend any Contributed Contract, in each case, measured that it is reasonably highly likely to cause the Earn-Out Event not to occur; or (iv) terminate the services of Ixxxx Xxxxxxx without cause, as reasonably determined by Buyer in accordance with GAAPgood faith. (e) The Parties agree to treat the Earn-Out Amount paid to Xcel, if any, made pursuant to this Section ‎2.7 as an adjustment to the Purchase Price for Tax purposes, except as otherwise required by applicable Tax Law.

Earn-Out. In addition to the Cash Portion of the Purchase Price, the Company shall be entitled to receive the Earn-Out Amount determined and payable as provided in this Section 2.3(e). (i) As soon The parties agree that, during the Earn-Out Period, (A) the operations previously conducted by the Company in the Network Group Operations shall be accounted for by PentaStar so as practicable after June 30, 2008, or, if sooner, as soon as practicable after to enable a Sales Event calculation of the Earn-Out Amount (as hereinafter definedand the Company shall have access to the records relating thereto), Buyer shall prepare and deliver to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (xB) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared Network Group Operations shall be accounted for in accordance with GAAP. Buyer the accounting practices of PentaStar, (C) the business of the Acquiror shall endeavor be conducted by the Acquiror and/or PentaStar in good faith to deliver the usual and ordinary course of PentaStar's business operations and neither the Acquiror nor PentaStar shall have any Liability to the Representative Company or any other Person for so conducting the Statement of EBITDA by August 15, 2008, business and (D) in operating the case business of the preceding clause (x)Network Group Operations, and within 20 Business Days after the Sales Event, in Acquiror and/or PentaStar may make decisions or take action with respect to the case business of the preceding clause (y)Network Group Operations that impacts, directly or indirectly, positively or negatively, the potential benefit of the Earn-Out arrangement. Buyer shall also make available The parties further agree that, absent willful and wanton conduct engaged in by the Acquiror and/or PentaStar with the sole purpose of materially affecting the potential benefit to the Representative copies Shareholders of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative Earn-Out arrangement, neither the Acquiror nor PentaStar shall have any Liability to the right Company or any other Person arising from or relating to dispute its or their conduct of the Statement business of EBITDA the Acquiror or any decisions made or actions taken with respect to the business of the Acquiror, including, without limitation, those of the type contemplated by clauses (and any items thereinC) as provided in Section 3(e)(ivor (D) belowabove. (ii) Except As soon as reasonably practicable after September 30, 2001 and in any event by December 10, 2001, PentaStar shall cause Arthxx Xxxexxxx X.X.P. ("Arthxx Xxxexxxx") xo determine (A) the Earn-Out EBITA and (B) prepare a written calculation of the Earn-Out Amount (collectively, the "Earn-Out Financial Statements"). Arthxx Xxxxxxxx'x xxxermination under this Section 2.3(e)(ii) shall be made in accordance with GAAP, on a basis consistent with the accounting practices of PentaStar. PentaStar shall cause Arthxx Xxxexxxx xx promptly provide a copy of the Earn-Out Financial Statements to PentaStar and the Company. Within 30 days after receipt of the Earn-Out Financial Statements, each of PentaStar and the Company shall, in a written notice to the other, either accept the Earn-Out Financial Statements or object to them by describing in reasonably specific detail any proposed adjustments to the Earn-Out Financial Statements and the estimated amounts of and reasons under PentaStar's application of GAAP for such proposed adjustments. The failure by PentaStar or the Company to object to the Earn-Out Financial Statements within such 30-day period shall be deemed to be an acceptance by the Company or PentaStar, as the case may be, of the Earn-Out Financial Statements. If any adjustments to the Earn-Out Financial Statements are proposed by PentaStar or the Company within such 30-day period, the dispute shall be resolved as provided in Section 3(e)(iii) below in 2.3(f). The fees and expenses of Arthxx Xxxexxxx xxx the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion preparation of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Earn-Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out Financial Statements shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) belowpaid by PentaStar. (iii) If (A) prior to June 30, 2008, Buyer sells Within 10 Business Days after the later of the acceptance of the Earn-Out Financial Statements by PentaStar and the Company or all or substantially all the resolution of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”any disputes under Section 2.3(f), and as the case may be (B) it but in no event prior to December 31, 2001 if the Promissory Note, or any amount thereunder, is determinedthen outstanding), after completion of PentaStar shall pay the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portionEarn-Out Amount, if any, of the Measurement Period occurring prior to the Closing Date) through Company (the Business Day immediately preceding the closing date time of such Sales Event is equal payment being referred to or greater than as the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post"Second Closing"). The Earn-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out Amount shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all payable, in PentaStar's sole discretion, in cash or PentaStar Common Stock, or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Periodcombination thereof; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDAEarn-Out Amount, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDAif any, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth payable only in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (cash to the extent deducted that (A) the amount due under the Promissory Note included in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, Loan Documents has not become due and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.payable under the terms of the Promissory Note

Earn-Out. Buyer shall pay to the Shareholders additional consideration in cash as described herein (the “Earn-Out,” with the payment made pursuant to the Earn-Out being the “Earn-Out Payment”), in accordance with the following: (i) As soon as practicable after June The Shareholders shall receive an Earn-Out Payment from Buyer in an amount of fifty percent (50%) of the EBITDA of the Company during each of (1) the period commencing on October 1, 2014 and ending on September 30, 20082015 (the “First Earn-Out Year”) and (2) the period commencing on October 1, or2015 and ending on September 30, if sooner2016 (the “Second Earn-Out Year” and together with the First Earn-Out Year, as soon as practicable after a Sales Event the “Earn-Out Period”). (ii) Notwithstanding anything in this Agreement to the contrary, in no event shall the aggregate Earn-Out Payment for the Earn-Out Period be less than Five Million Dollars ($5,000,000) (the “Minimum Earn-Out Amount”). If the amount of the Final First Earn-Out Year Payment (as hereinafter defineddefined below) is less than the Minimum Earn-Out Amount, then such difference, less any amounts withheld in connection with any Unresolved Claims, shall be paid to the Shareholders by wire transfer of immediately available funds on October 1, 2016. If the aggregate amount of the Earn-Out Payment for the Earn-Out Period as finally determined hereunder is greater than the Minimum Earn-Out Amount, then such difference, less any amounts withheld in connection with any Unresolved Claims, shall be paid to the Shareholders in accordance with the terms of this Section 2.2(d). (iii) For each of the First Earn-Out Year and the Second Earn-Out Year, Buyer shall prepare and deliver to the Representative complete a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, calculation of the Measurement Period occurring prior to Earn-Out Payment for the Closing Date) and prepared applicable Earn-Out Year based on the EBITDA for the Company during such Earn-Out Year calculated in accordance with GAAP, applied on a consistent basis with the Company’s past practices as of the Closing Date. Buyer shall endeavor in good faith to deliver the calculation of the Earn-Out Payment for the applicable Earn-Out Year, along with reasonable supporting documentation, to the Representative Shareholders within forty-five (45) days after the Statement of EBITDA by August 15, 2008, in the case end of the preceding clause (x), and within 20 Business Days after applicable Earn-Out Year. During the Sales Event, in period following delivery by the case Buyer of the preceding clause calculation of the Earn-Out Payment for the applicable Earn-Out Year until the final determination of the Earn-Out Payment for such Earn-Out Year in accordance with the terms of this Agreement, the Shareholders, after providing at least two (y). Buyer 2) Business Days’ advanced notice to Buyer, shall also make available have reasonable access to the Representative copies of all work papers books and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA records (and any items thereinincluding financial statements) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDABusiness, to the extent necessary, to the Facilities and after completion employees of the time Business and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of accountant’s work papers during regular business hours to review the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement computation of EBITDA for the Company prepared applicable Earn-Out Year. Buyer’s calculation of the Earn-Out Payment for each Earn-Out Year shall be deemed conclusive and binding on the Parties for purposes of computing the Earn-Out Payment, unless the Shareholders notify Buyer in accordance with GAAP writing within forty-five (45) days after receipt of any such calculation of the disagreement therewith by the Shareholders. Any such notice of dispute shall state in reasonable detail the reasons for any such disagreement and identify the amounts and items in dispute. Buyer and the Shareholders will use reasonable efforts to resolve any such disagreements themselves. If Buyer and the Shareholders are unable to resolve any such disagreement within thirty (30) days after the end of each receipt of notice of the first three fiscal quarters during Shareholders’ disagreement, then such dispute shall be resolved in a manner consistent with the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to in Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement2.4(f). If the Representative disputes Shareholders fail to provide written notice of a disagreement with Buyer’s Statement calculation of EBITDA, he shall so notify any such Earn-Out Payment to Buyer on within such forty-five (45) day period or if the Shareholders indicate in writing that the Shareholders have no dispute with respect to the calculation of such Earn-Out Payment prior to the expiration of such 30forty-five (45) day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to make such Earn-Out Payment, less any portion of the Independent Accountant Earn-Out Payment previously paid and less any amounts withheld in writing not later than connection with any Unresolved Claims, within fifteen (15) days after the Independent Accountant is retained their respective positions earlier of Buyer’s receipt of notice from the Shareholders that the Shareholders have no dispute with respect to the Statement of EBITDA and their respective calculation of EBITDA for such Earn-Out Payment or the applicable Measurement Periodexpiration of the forty-five (45) day period during which the Shareholders are required to provide such written notice pursuant to this Section 2.2(d). Notwithstanding anything to the contrary contained in this Section 2.2(d): (1) if Buyer and Shareholders disagree as to the amount of the portion of the Earn-Out Payment payable with respect to the First Earn-Out Year (the “First Earn-Out Year Payment”), together Buyer shall pay Shareholders the uncontested portion of such First Earn-Out Year Payment as calculated by Buyer (the “First Year Uncontested Amount”), less any amounts withheld in connection with any Unresolved Claims, by wire transfer of immediately available funds within three (3) Business Days of receipt of a notice of disagreement by Buyer pursuant to this Section 2.2(d), and shall pay upon final determination of the First Earn-Out Year Payment pursuant to this Section 2.2(d), an amount equal to such supporting documentation First Earn-Out Year Payment as they deem necessary or finally determined hereunder (the “Final First Year Earn-Out Payment”), minus the First Year Uncontested Amount to the extent previously paid to the Shareholders, less any amounts withheld in connection with any Unresolved Claims, by wire transfer of immediately available funds within three (3) Business Days of final determination of the Final First Earn-Out Year Payment; and (2) if Buyer and Shareholders disagree as to the Independent Accountant requestsamount of the portion of the Earn-Out Payment payable with respect to the Second Earn-Out Year (the “Second Earn-Out Year Payment”), Buyer shall pay Shareholders an amount equal to the greater of: (i) the Minimum Earn-Out Amount minus the Final First Earn-Out Year Payment and (ii) the Independent Accountant shalluncontested amount of the Second Earn-Out Year Payment as calculated by Buyer, within thirty (30such greater amount of (i) days after receiving or (ii) above, the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant“Second Year Uncontested Amount”), render its decision as less any amounts paid pursuant to the Statement second sentence of EBITDASection 2.2(d)(ii) and less any amounts withheld in connection with any Unresolved Claims, which decision shall be by wire transfer of immediately available funds within three (3) Business Days of receipt of a notice of disagreement by Buyer pursuant to this Section 2.2(d). Upon final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses determination of the Independent Accountant Second Earn-Out Year Payment pursuant to this Section 2.2(d), Buyer shall be paid onepay to the Shareholders, an amount equal to such Earn-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period Out Payment as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period hereunder (the “Settlement Final Second Earn-Out Year Payment”) minus the Second Year Uncontested Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted previously paid to the Shareholders), less any amounts withheld in determining connection with any Unresolved Claims, by wire transfer of immediately available funds within three (3) Business Days of the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other nonFinal Second Earn-cash expenses for such period, in each case, measured in accordance with GAAPOut Year Payment.

Earn-Out. (a) As additional consideration for the Shares being sold by the Sellers and purchased by Buyer hereunder, Buyer shall pay to the Sellers the amounts set forth in this Section 1.7: (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver an amount equal to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portionamount, if any, by which the consolidated EBITDA of the Measurement Period occurring prior to Company and its current Subsidiaries for the Closing Datefiscal year ending December 31, 2013 (“2013 EBITDA”) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to exceeds $11,000,000 (such excess, if any, the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x“2013 Earn-Out Payment”), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below.; and (ii) Except as provided in Section 3(e)(iii) below in an amount equal to the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portionamount, if any, by which the consolidated EBITDA of the Measurement Period occurring prior to Company and its current Subsidiaries for the Closing Datefiscal year ending December 31, 2014 (“2014 EBITDA”) is equal to or greater than ****************************** ********** exceeds $12,000,000 (such excess, if any, the “Required EBITDA Amount2014 Earn-Out Payment,” and together with the 2013 Earn-Out Payment, the “Earn-Out Payments”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion the maximum aggregate amount of Earn-Out Payments payable under this Section 1.7 shall be $5,000,000. (b) The following sets forth the Statement of EBITDA, procedures for determining the 2013 EBITDA and after completion of 2014 EBITDA (and the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portioncorresponding Earn-Out Payments, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of for resolving disputes among the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested parties with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes determination of the Statement of EBITDA, that 2013 EBITDA for and 2014 EBITDA (and the Measurement Period (including the portioncorresponding Earn-Out Payments, if any): (i) As soon as practical (and in no event later than seventy-five (75) days after each of December 31, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold2013 and 2014), then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior cause to June 30, 2008, Buyer sells be prepared and delivered to the Company or all or substantially all Sellers' Representative a written statement that sets forth in reasonable detail Buyer's calculation of the Company’s assets to a third party 2013 EBITDA or 2014 EBITDA, as applicable (other than an Affiliate of “Buyer) (a “Sales Event's EBITDA Report”), and (B) it is determinedpay to the Sellers (in accordance with each Seller's Proportionate Share) an amount equal to the 2013 Earn-Out Payment or 0000 Xxxx-Xxx Payment, after completion as applicable, based on the calculation of the Statement of 2013 EBITDA or 2014 EBITDA, and after completion as applicable, as reflected in Buyer's EBITDA Report (such amount paid, the “Preliminary Earn-Out Payment”). Any Preliminary Earn-Out Payment made pursuant to this Section 1.7(b)(i) shall be made by wire transfer of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior immediately available funds to the Closing Dateaccount or accounts designated by the Sellers' Representative. (ii) through Within thirty (30) days after delivery to the Business Day immediately preceding Sellers' Representative of Buyer's EBITDA Report, the closing date of such Sales Event is equal Sellers' Representative may deliver to or greater than Buyer a written report ("Sellers' EBITDA Report") advising Buyer either that the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) (Sellers (A) and agree with the calculation of the 2013 EBITDA or 2014 EBITDA, as applicable, reflected in Buyer's EBITDA Report or (B) beingdeem that one or more adjustments are required. If Buyer shall concur with the adjustments proposed in Sellers' EBITDA Report, collectivelyor if Buyer shall not object thereto in a writing delivered to the Sellers' Representative within thirty (30) days after Buyer's receipt of Sellers' EBITDA Report, the “Postcalculation of the 2013 EBITDA or 2014 EBITDA, as applicable, reflected in Sellers' EBITDA Report shall become final and shall not be subject to further review, challenge or adjustment absent fraud. If the Sellers' Representative does not submit a Sellers' EBITDA Report within the 30-Closing Earn Out Conditions Following a Sales Event”)day period provided herein, then Buyer the calculation of the 2013 EBITDA or 2014 EBITDA, as applicable, reflected in Buyer's EBITDA Report shall promptly pay the Earn Out to Sellers, become final and shall not be subject to Buyer’s rights under Sections 2(bfurther review, challenge or adjustment absent fraud. (iii) and 15(f); provided, however, In the event that if the Post-Closing Earn Out Conditions Following Sellers' Representative submits a Sales Event are not satisfied in full, then no Earn Out shall be due under this Sellers' EBITDA Report pursuant to Section 3(e)(iii1.7(b)(ii)(B) and Buyer objects by written notice as set forth in Section 1.7(b)(ii), Buyer and the Sellers' Representative shall have no obligation under this Section 3(e)(iii) confer in good faith to pay all or attempt to resolve any portion of disagreements between Buyer's EBITDA Report and Sellers' EBITDA Report. If Buyer and the Earn Out Sellers' Representative are unable to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP resolve such disagreements within thirty (30) days after the end date of each Buyer's written objection to Sellers' EBITDA Report, then such disagreements shall be referred to the Settlement Accountants, and the determinations of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply Settlement Accountants with respect to the Statement calculation of the 2013 EBITDA delivered pursuant or 2014 EBITDA, as applicable, shall be final and shall not be subject to Section 3(e)(i) abovefurther review, challenge or adjustment absent fraud. The Representative Settlement Accountants shall have until thirty use their best efforts to reach a determination not more than forty-five (3045) days after such referral. The 2013 Earn-Out Payment or 0000 Xxxx-Xxx Payment, as applicable, based on the receipt final and binding calculation of the Statement of 2013 EBITDA to review such statement. If the Representative disputes Buyer’s Statement of or 2014 EBITDA, he as applicable, shall so notify Buyer on or prior be referred to herein as the expiration “Final Earn-Out Amount.” (iv) Each party shall pay its own costs and expenses incurred in connection with this Section 1.7. The costs and expenses of such 30-day period. the services of the Settlement Accountants shall be allocated between Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding Sellers by the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer Settlement Accountants such that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (on the “Independent Accountant”one hand) and the Sellers (on the other hand) shall bear a fraction of such expenses equal to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to absolute difference between (A) the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective final calculation of the 2013 EBITDA for or 2014 EBITDA, as applicable, resulting from the applicable Measurement Perioddetermination of the Settlement Accountants and (B) the calculation of the 2013 EBITDA or 2014 EBITDA, together with such supporting documentation as they deem necessary applicable, reflected in the Buyer's EBITDA Report or Sellers' EBITDA Report, as the Independent Accountant requestsapplicable, and divided by (ii) the Independent Accountant shallabsolute difference between (A) the calculation of the 2013 EBITDA or 2014 EBITDA, within thirty as applicable, reflected in the Buyer's EBITDA Report and (30B) days after receiving the positions calculation of both the Representative and 2013 EBITDA or 2014 EBITDA, as applicable, reflected in the Sellers' EBITDA Report. (c) If the applicable Final Earn-Out Amount is less than the applicable Preliminary Earn-Out Payment (such amount, the “Earn-Out Shortfall”), then the Sellers shall severally pay to Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as (in accordance with each Seller's Proportionate Share) an amount equal to the Statement amount of EBITDA, which decision shall be final and binding on, and nonappealable bysuch Earn-Out Shortfall. If the Final Earn-Out Amount is greater than the Preliminary Earn-Out Payment (such amount, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one“Earn-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by BuyerOut Excess”), then Buyer shall pay 100% to the Sellers (in accordance with each Seller's Proportionate Share) an amount equal to the amount of such Earn-Out Excess. Any payments made pursuant to this Section 1.7(c) shall be made by wire transfer of immediately available funds to the account or accounts designated by the Sellers' Representative or Buyer, as the case may be, within five (5) business days of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for date the applicable Measurement Period Final Earn-Out Amount is final and binding upon the parties (the “Settlement Amount CertificateEarn-Out Adjustment Payment Date”). (vd) For purposes of this Section 3(e)hereof, “EBITDA” shall mean means the sum of consolidated net income of the Company and its current Subsidiaries, calculated in accordance with GAAP applied on a basis consistent with the accounting policies, practices and procedures used to prepare the Company's consolidated Financial Statements as of and for the Measurement Period plus (year ended December 31, 2012 included in the Company Financial Statements, plus, to the extent deducted in determining the Company’s calculating such net income) , (i) interest expense all charges for such periodor with respect to interest, taxes, depreciation and amortization, (ii) income tax all expenses related to the transactions contemplated hereby and/or potential or completed future financings or acquisitions, including legal, accounting, due diligence and investment banking fees and expenses and the payments made pursuant to Sections 5.7 and 5.8 hereof, (iii) all management fees, allocations of corporate overhead (including executive compensation) or other administrative costs that arise from the ownership of the Company by Buyer or its Affiliates, including allocations of supervisory, centralized or other parent-level expense items, in excess of $30,000 per month unless such excess (or any portion thereof) is approved in writing by Xxxxx X. Xxxxxxx, (iv) all other intercompany charges between the Buyer (or its Affiliates) and the Company (or any of its current Subsidiaries) which have not been approved by Xxxxx X. Xxxxxxx (other than charges for such periodtransportation services at the lower of cost and market rates and other than charges described in clause (iii) above), and (iiiv) depreciation expenseany reserves or adjustments to reserves which are not consistent with GAAP applied on a basis consistent with the accounting policies, amortization expense practices and other non-cash expenses procedures used to prepare the Company's consolidated Financial Statements as of and for such periodthe year ended December 31, 2012 included in each case, measured in accordance with GAAPthe Company Financial Statements.

Earn-Out. (ia) As soon as practicable after June 30additional consideration for the Contemplated Transactions, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), the Buyer shall prepare and deliver to pay Seller the Representative a statement of EBITDA (as defined contingent price payments set forth in this Section 3(e)(v) below) 1.5 (the “Statement Earn-Out”). The amount of EBITDA”) measured in U.S. dollars the Earn-Out will equal 5% of EBIT for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested solely with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA Existing DMAs for the Measurement Period (including years ending December 31, 2006, 2007, 2008, 2009 and 2010; provided that the portion, if any, of Earn-Out for 2006 shall begin to accrue on the Measurement Period occurring prior to day after the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and . Buyer shall have no obligation pay Seller the Earn-Out payments annually within 10 days of MasTec filing its 10-K for the respective fiscal year by wire transfer of next day funds to pay all an account or any portion accounts designated by Seller. For purposes of this Agreement, “EBIT” means the Net Income of the Earn Out Business solely with respect to Sellersthe Existing DMAs for the respective twelve-month period in the applicable fiscal year, except as provided plus (a) income Taxes deducted in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”)determining Net Income, and (Bb) it is determined, after completion any interest on indebtedness incurred to finance the acquisition of the Statement Assets contemplated hereby (including, without limitation, any original issue discount). For purposes of EBITDAthis Agreement, and after completion “Net Income” means, for any of the time and procedure described in Section 3(e)(ivforegoing periods, the net income (or loss) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior Business solely with respect to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) beingExisting DMAs, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared determined in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Periodconsistent with MasTec’s other Advanced Tech Service Group divisions and as set forth in Schedule 1.5; provided, provided however, that Net Income shall not be adjusted for any intra-company transfers to or from the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions Business with respect to MasTec or its Affiliates unless those transfers relate to a business transaction between the Statement Business and MasTec or its Affiliates that would have occurred in the ordinary course of EBITDA conducting business had Buyer not acquired the Assets. For purposes of clarification, Net Income shall only be derived from the operation of the Business in the Existing DMAs and their respective calculation of EBITDA for only to the extent the Business is being conducted in such Existing DMAs during the applicable Measurement Periodperiod, together with such supporting documentation as they deem necessary or as from the Independent Accountant requestsservices the Business is offering in the Existing DMAs, and from customers (iii.e., DirecTV) that the Independent Accountant shall, within thirty (30) days after receiving Business is generating orders from as of the positions date of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyerthis Agreement. The fees Any revenue and expenses resulting from new customers, new DMAs or new services shall not be included in the definition of the Independent Accountant shall be paid one-half by the Sellers and one-half by BuyerNet Income; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer MasTec shall pay 100% of the fees and expenses of the Independent AccountantMx. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer Xxxxxxxx a bonus if earned pursuant to the preceding clause (i), but shall ultimately be derived solely terms of the Executive Employment Agreement from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision successful oversight of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)such new customers, DMAs or services as any such incremental oversight responsibilities may be assigned by MasTec in its reasonable discretion. (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (a) Following the Closing, subject to Section 10, the Sellers may be entitled to receive additional consideration (the "Earn-Out Consideration") in the form of shares of Chyron Common Stock (the "Earn-Out Shares") up to an aggregate amount such that the sum of the Closing Shares and the Earn-Out Shares (if earned) will represent up to fifty percent (50%) of the sum of the Base Shares and the Earn-Out Shares (if earned), subject to and contingent upon the following conditions: (i) As soon as practicable after June 30, 2008, orSubject to Section 2.3(a)(iv), if soonerHego Revenue (as recorded and translated to US dollars under U.S. GAAP) exceeds Fifteen Million Five Hundred Thousand US Dollars ($15,500,000) for the 2013 Earn-Out Period, then the Sellers shall be entitled to receive, and Chyron AB shall cause to be issued to them, as soon as practicable after a Sales Event Earn-Out Consideration (as hereinafter definedthe "2013 Earn-Out Consideration"), Buyer shall prepare and deliver to the Representative a statement number of EBITDA (as defined in Section 3(e)(v) below) additional shares of Chyron Common Stock (the “Statement "2013 Earn-Out Shares") which will cause the percentage of EBITDA”the sum of the Base Shares and the 2013 Earn-Out Shares which is represented by the sum of the Closing Shares and the 2013 Earn-Out Shares to increase by five percent (5%) measured in U.S. dollars for over the percentage of the Base Shares which is represented by the Closing Shares (xi.e., from forty percent (40%) to forty-five percent (45%)), allocated to and among the twelve (12) calendar months ending June 30, 2008 or (y) Sellers as set forth in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) belowHego Payout Spreadsheet. (ii) Except as provided in Subject to Section 3(e)(iii) below in the event of a Sales Event 2.3(a)(iv), if Hego Revenue (as hereinafter definedrecorded and translated to US dollars under U.S. GAAP) prior exceeds Sixteen Million US Dollars ($16,000,000) for the 2014 Earn-Out Period, then the Sellers shall be entitled to June 30receive, 2008and Chyron AB shall cause to be issued to them, if it is determinedas Earn-Out Consideration (the "2014 Earn-Out Consideration"), after completion a number of additional shares of Chyron Common Stock (the "2014 Earn-Out Shares") which will cause the percentage of the Statement of EBITDA, and after completion sum of the time Base Shares, the 2013 Earn-Out Shares (if earned) and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for 2014 Earn-Out Shares which is represented by the Measurement Period (including the portion, if any, sum of the Measurement Period occurring prior Closing Shares, the 2013 Earn-Out Shares (if earned) and the 2014 Earn-Out Shares to increase by two and one-half percent (2.5%) over the percentage of the sum of the Base Shares, the 2013 Earn-Out Shares (if earned) and the 2014 Earn-Out Shares which is represented by the sum of the Closing DateShares and the 2013 Earn-Out Shares (if earned) (i.e., from forty-five percent (45%) to forty-seven and one-half percent (47.5%) if the 2013 Earn-Out Consideration is equal earned and from forty percent (40%) to or greater than ****************************** ********** (forty-two and one-half percent if the “Required EBITDA Amount”2013 Earn-Out Consideration is not earned), then Buyer shall promptly pay allocated to and among the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts Sellers as set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) belowHego Payout Spreadsheet. (iii) If Subject to Section 2.3(a)(iv), if Hego Revenue (Aas recorded and translated to US dollars under U.S. GAAP) prior exceeds Sixteen Million Five Hundred Thousand US Dollars ($16,500,000) for the 2015 Earn-Out Period, then the Sellers shall be entitled to June 30receive, 2008and Chyron AB shall cause to be issued to them, Buyer sells as Earn-Out Consideration (the Company or all or substantially all "2015 Earn-Out Consideration"), a number of additional shares of Chyron Common Stock (the "2015 Earn-Out Shares") which will cause the percentage of the Company’s assets to a third party sum of the Base Shares, the 2013 Earn-Out Shares (other than an Affiliate of Buyer) (a “Sales Event”if earned), the 2014 Earn-Out Shares (if earned) and (B) it the 2015 Earn-Out Shares which is determined, after completion represented by the sum of the Statement Closing Shares, the 2013 Earn-Out Shares (if earned), the 2014 Earn-Out Shares (if earned) and the 2015 Earn-Out Shares to increase by two and one-half percent (2.5%) over the percentage of EBITDAthe sum of the Base Shares, the 2013 Earn-Out Shares (if earned) and the 2014 Earn-Out Shares (if earned) which is represented by the sum of the Closing Shares, the 2013 Earn-Out Shares (if earned) and the 2014 Earn-Out Shares (i.e., from forty-seven and one-half percent (47.5%) to fifty percent (50%) if the 2000 Xxxx-Xxx Consideration and the 2014 Earn-Out Consideration are both earned, from forty-five percent (45%) to forty-seven and one-half percent (47.5%) if the 2013 Earn-Out Consideration is earned but the 2014 Earn-Out Consideration is not earned, from forty-two and one-half percent to forty-five percent (45%) if the 2013 Earn-Out Consideration is not earned but the 2014 Earn-Out Consideration is earned, and after completion of from forty percent (40%) to forty-two and one-half percent (42.5%) if neither the time 2000 Xxxx-Xxx Consideration nor the 2014 Earn-Out Consideration is earned), allocated to and procedure described in Section 3(e)(iv) below if Representative disputes among the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount Sellers as set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, in the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to SellersHego Payout Spreadsheet. (iv) Buyer will deliver Notwithstanding the foregoing, if Hego Revenue (as recorded and translated to the Representative a quarterly statement of EBITDA US dollars under U.S. GAAP) exceeds Thirty-Three Million US Dollars ($33,000,000) for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement 2013/2014 Earn-Out Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer Sellers shall each submit be entitled to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requestsreceive, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as Chyron AB shall cause to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer issued to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus them (to the extent deducted in determining not previously issued to them), the Company’s net income) (i) interest expense for such periodmaximum number of Earn-Out Shares without regard to the provisions of Sections 2.3(a)(i), (ii) income tax expense for such period, and (iii), which provisions shall thereupon cease to be of any force or effect (i.e. such that the sum of the Closing Shares and Earn-Out Shares issued to them will represent fifty percent (50%) depreciation expense, amortization expense of the sum of the Base Shares and other nonthe Earn-cash expenses for such period, in each case, measured in accordance with GAAPOut Shares issued to them).

Earn-Out. (ia) As soon Earn-Out Payment. In addition to the Initial Consideration, Merger Sub and the Acquiror agree to pay, as practicable after June 30, 2008, orset forth below, if soonerand when earned, an earned payout amount (the "Earn-Out Payment") equal to shares of Acquiror Common Stock having a Fair Market Value equal to $3,500,000 (subject to adjustment as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA (as defined in Section 3(e)(v) set forth below) (the “Statement of EBITDA”"Earn-Out Shares") measured in U.S. dollars for if the Net Product Revenues during the fifteen (x15) the twelve (12) calendar months month period commencing on April 1, 2006 and ending June 30, 2008 2007 (the "Earn-Out Period") equals or exceeds $4,200,000 (y) in the "Target Revenue"). In the event of a Sales Event prior that the Target Revenue is less than $4,200,000, then the Earn-Out Payment shall be reduced by the same percentage that the actual Net Product Revenue (the "Actual Revenue") is less than the Target Revenue; provided, however if the Actual Revenue is less than $1,200,000 then the Earn-Out Payment shall be reduced to June 30, 2008zero (0). In addition, the period Earn-Out Payment will be reduced dollar for dollar for expenses that exceed the expense budget for the Earn-Out Period as agreed upon by Acquiror and the Company. In no event shall the Earn-Out Payment exceed $3,500,000. The Earn-Out Shares shall be issued by the Acquiror within fifteen (15) days of the determination that the Target Revenue amount has been achieved, whether or not fifteen (15) months shall have passed from and after July April 1, 20072006. Subject to the condition that the Stockholders' Agent provides Acquiror with written evidence that within thirty (30) days of the Closing Date 100% of the unanimous written consent of the Company Stockholders authorized the following allocation of the Earn-Out Payment, through if any: (A) the Business Day immediately preceding first $875,000 of Earn-Out Shares, if any, shall be paid to the closing date of such Sales Event Company Stockholders, and (in each case, B) the “Measurement Period”) (including the portionremaining balance, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement $3,500,000 of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portionEarn-Out Shares or such lessor amount, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half to an escrow account to be established by the Sellers and one-half by Buyer; Company's current management. In the event written evidence of such authorization is not provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer Earn-Out Payment shall be paid to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)'s Stockholders. (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (i) As soon as practicable after June 307.1 Subject to subclause 7.5, 2008, orand paragraph 1 of Appendix 5, if soonerthe Turnover for an Earn-Out Period exceeds the amounts set out in Part 2 of Appendix 4 for that Earn-Out Period, as soon as practicable after further consideration for the sale of the Shares, the Sellers shall be entitled to receive a Sales Event sum (as hereinafter defined), Buyer shall prepare and deliver the Earn-Out Consideration) equal to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior amount corresponding to the Closing Date) and prepared amount of Turnover achieved in that Earn-Out Period as set out in Part 2 of Appendix 4. The Earn-Out Consideration shall be satisfied in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement provisions of EBITDA by August 15, 2008, in the case of the preceding this clause (xand not otherwise), and each Seller shall be entitled to the Earn-Out Relevant Percentage of the Earn-Out Consideration less any amount that the Sellers’ Representative requires to be deducted pursuant to subclause 8.11(c). 7.2 The Turnover for each Earn-Out Period shall be ascertained as contemplated by Part 1 of Appendix 4. 7.3 The Purchaser shall satisfy the Earn-Out Consideration for that Earn-Out Period by: (a) making a payment of the Earn-Out Relevant Percentage of the Earn-Out Consideration for that Earn-Out Period to the Cash Sellers; or (b) issuing to the Loan Note Sellers Earn-Out Notes with an aggregate nominal value equal to the Earn-Out Relevant Percentage of the Earn-Out Consideration for that Earn-Out Period. 7.4 Any payment to the Cash Sellers pursuant to subclause 7.3(a) shall be made within 20 10 Business Days after the Sales Event, in the case of the preceding clause (y)Turnover for the relevant Earn-Out Period being ascertained. Buyer shall also make available Any issue of Earn-Out Notes to the Representative copies Loan Note Sellers pursuant to subclause 7.3(b) shall be made within 15 Business Days of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have Turnover for the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) belowrelevant Earn-Out Period being ascertained. (ii) Except as provided 7.5 The maximum Earn-Out Consideration payable by the Purchaser in Section 3(e)(iii) below respect of both Earn-Out Periods shall not exceed $100,000,000 in the event aggregate and there shall be disregarded for all purposes any Earn-Out Consideration in excess of a Sales Event (as hereinafter defined) prior to June 30that amount which would be payable but for this subclause. 7.6 Following Completion, 2008, if it is determined, after completion any and all decisions regarding efforts which any member of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior Purchaser’s Group shall cause to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested be expended with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes design, development, production, marketing or sale of any Group Company’s products and services or any other aspect of the Statement operation of EBITDA, that EBITDA for the Measurement Period business of EA Inc. or its subsidiaries (including the portionGroup Companies) shall be made by the Purchaser’s Group in its sole and absolute discretion without any express or implied obligation or liability to any party, if any, including any Seller. Nothing in this subclause 7.6 shall operate to preclude the rights of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all Sellers (or any portion of the Earn Out to Sellers, except as provided them) set out in Section 3(e)(iii) subclauses 7.7 and 7.8 below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. As additional consideration for the purchase of the Shares, the Sellers shall be entitled to receive the amount of cash payable in accordance with this Article 2.3. 2.3.1 The Sellers shall be entitled to receive an amount equal to €175,000 (ithe “Transition Amount”) As soon as practicable after June 30if Xx Xxxxxxx Xxxxx exercises his functions directly, 2008, or, if sooner, as soon as practicable after or through one of his Affiliates (including Pressetel) in the Company during a Sales Event (as hereinafter defined), Buyer shall prepare and deliver to period of one year from the Representative a statement Closing Date. In case of EBITDA his or his Affiliate’s dismissal without Cause (as defined in Section 3(e)(v) below) (herein), by the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if anyPurchaser, of its functions during this time period, Sellers will be entitled to receive the Measurement Period occurring prior to Transition Amount pro rata based on the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case portion of the preceding clause (x), and within 20 Business Days after year he was working with the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) belowCompany. (ii) Except as provided in Section 3(e)(iii) below in 2.3.2 If the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) Company’s Turnover Growth is equal to or greater than ****************************** ********** 10%, then Purchaser shall pay the Sellers an amount equal to €189,000 (the “Required EBITDA Turnover Amount”). Additionally, for each full percentage point that the Company’s Turnover Growth exceeds 10%, the Turnover Amount shall be increased by €21,000. If the Company’s Turnover Growth is less than 10%, no Turnover Amount shall be paid; and in no event shall the Turnover Amount exceed €315,000. 2.3.3 If the Company’s EBIT Margin equals or exceeds 18.6%, then Buyer Purchaser shall promptly pay the Earn Sellers an amount equal to €210,000 (the “EBIT Amount,” and together with the Transition Amount, if applicable, and the Turnover Amount, if applicable, the “Earn-Out to SellersAmount”). If the Company’s EBIT Margin is less than 18.6%, subject to Buyer’s rights under Sections 2(b) no EBIT Amount shall be paid. For purposes hereof, all incremental costs and 15(f); provided, however, that if it is determined, after completion expenses incurred by the Company on demand of the Statement of EBITDA, and after completion Purchaser that are incurred solely in connection with the adaptation of the time administrative structure of the Company and procedure described in Section 3(e)(ivthe Subsidiary will be excluded from the determination of the Company’s EBIT Margin (for example: incremental fees and expenses associated solely with the implementation of the Vocus reporting process, transformation of the financial statements into US GAAP, recruitment of a financial controller or accountant and recruitment of a successor managing director or gérance. 2.3.4 For purposes hereof, (i) below if Representative disputes “Turnover Growth” means the Statement of EBITDA, that EBITDA for percentage increase (rounded down to the Measurement Period (including the portionnearest full percentage point), if any, in the Turnover between the 12 month periods ended April 30, 2011 and Xxxxx 00, 0000, (xx) “Turnover” means the Company’s turnover for the applicable period, determined on a consolidated basis in accordance with GAAP, but excluding any applicable capitalized software expenses, (iii) “EBIT Margin” means the Company’s EBIT for the 12 month period ended April 30, 2011 divided by the Company’s Turnover for the same period, (iv) “EBIT” means the Company’s Net Income for such period, with the extraordinary result, the amount of the Measurement Period occurring prior to employee profit sharing plan if applicable, all charges for interest expense and income taxes for such period added back and (v) “Net Income” means the Closing Date) is less than the Required EBITDA Amount and equal to net income (or greater than ****** percent (***%loss) of the Required EBITDA Amount (the “***% Threshold”)Company, then Buyer shall, subject to Buyer’s rights under Sections 2(b) determined on a consolidated basis and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (for the 12 month period ended April 30) days after the end , 2011, exclusive of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply any recoveries relating to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)Presshall matter. (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (a) Solely on the terms and subject to the conditions in this section and the other provisions of this Agreement, the Shareholders shall be eligible to receive additional contingent consideration from NMI, in the form of an aggregate of 65,920 NMI Shares (the “Earn-Out”) after December 31, 2006. The Earn-Out shall be issued to the Shareholders if, and only if, the Earn-Out Revenue during the Revenue Measurement Period equals or exceeds $25,951,000 (the “Revenue Target”). To the extent that during the Revenue Measurement Period, current employees of the Company, from time to time, divert their attention and time away from the Business to assist the employees of NMI in the conduct and operation of NMI’s businesses (excluding the conduct and operation of the Business), then the amount equal to the following shall be known as the “Earn-Out Credit”: that amount derived from multiplying (i) As soon as practicable after June 30the number of hours spent by all such Company employees involved in such assistance at any given time during the Revenue Measurement Period, 2008by (ii) $1000 and then dividing the resulting product by (iii) the Person Day. In the event that the Earn-Out Revenue does not equal or exceed the Revenue Target during the Revenue Measurement Period, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer NMI shall prepare and deliver have no obligation to make any payment to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior Shareholders and no obligation to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, issue any of the Measurement Period occurring prior NMI Shares comprising the Earn-Out to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) belowShareholders. (iib) Except as provided in Section 3(e)(iii) below in In the event NMI is obligated to deliver the Earn-Out pursuant to Section 2.4(a), within fifteen (15) business days after the final determination of a Sales Event the Earn-Out Revenue pursuant to Section 2.4(d) below, NMI shall deliver the NMI Shares comprising each Shareholder’s portion of the Earn-Out (as hereinafter defineddetermined pursuant to Section 2.3(a)) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f)such Shareholder; provided, however, that if it in the event that such Shareholder is determinedeligible to receive a fractional amount of NMI Shares as determined herein, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior then such fractional amount shall be rounded up to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) belownearest whole integer amount. (iiic) If NMI shall calculate the Earn-Out Revenue within forty-five (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (3045) days after the end of each the Revenue Measurement Period, and shall notify the Shareholders Representative of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration results of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not calculation no later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect date such calculation has been made and such notice shall include the computation used to determine the Statement Earn-Out Revenue and a copy of EBITDA and their respective calculation of EBITDA for all financial information used to make such computation. (d) Unless the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and Shareholders Representative notifies NMI in writing within twenty (ii) the Independent Accountant shall, within thirty (3020) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested receipt by the Independent AccountantShareholders Representative of NMI’s statement of the Earn-Out Revenue, render its decision as to of any objections thereto (specifying in reasonable detail the Statement of EBITDAbasis therefor), which decision such statement shall be final and binding onfor all purposes. If the Shareholders Representative timely notifies NMI of any such objection, NMI and nonappealable bythe Shareholders Representative shall attempt in good faith to reach an agreement as to the matter in dispute. If the parties shall have failed to resolve any such dispute within ten (10) days after receipt of timely notice of such objection, then any such disputed matter shall be submitted to and determined by a mutually agreed upon independent team of auditors at a nationally recognized independent accounting firm (the “Independent Accounting Firm”). The Independent Accounting Firm shall be given reasonable access to all of the records of the Company that relate to the Business (including the applicable financial statements) to determine the Earn-Out Revenue, together with all the schedules and work papers of NMI and the Company that were used to determine the Earn-Out Revenue, which determination shall be submitted to NMI and the Shareholders Representative and Buyerwithin twenty (20) days. The fees and expenses of such Independent Accounting Firm incurred in resolving the Independent Accountant disputed matter shall be paid oneequitably apportioned by such Independent Accounting Firm based on the extent to which NMI, on the one hand, or the Shareholders Representative, on the other hand, is determined by such Independent Accounting Firm to be the prevailing party in the resolution of such disputed matters. The determination of the Earn-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined Out Revenue by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by BuyerAccounting Firm shall, then Buyer shall pay 100% after resolution of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer any dispute pursuant to the preceding clause (ithis Section 2.4(d), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)final, binding and conclusive on all parties hereto. (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver 7.1 When the Purchaser commercializes the Gyronimo Platform by selling Application Cartridges for it to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008third parties, the period Sellers shall receive a licensing fee of [***]% of the net sales revenue from the Gyronimo Platform Application Cartridges marketed and after July 1commercialized by the Purchaser, 2007, through the Business Day immediately preceding the closing date up to a total maximum of such Sales Event EUR 9,000,000.00 (in each casewords: nine million euro) net, plus the legal value-added tax (hereinafter, the “Measurement PeriodApplication Cartridges Earn-Out”). 7.2 If commercial use is made of the Analyzers separately from the Application Cartridges, e.g. instead of using the Application Cartridges commercially or to an extent comparable with commercial use of the Application Cartridges, the Sellers shall receive a Lump-Sum Amount (“Lump-Sum Amount”) of EUR [***] up to a maximum total amount of EUR 9,000,000.00 (including in words: nine million euro) net, plus the portionlegal value-added tax (hereinafter, if anythe “Analyzers Earn-Out”; the Application Cartridges Earn-Out and the Analyzers Earn-Out shall hereinafter be referred to collectively as the “Earn-Out”). The Lump-Sum Amount shall be based on the receipt of a coverage amount (“Gross Profit”) per Analyzer of ca. EUR [***], and application of a licensing fee of [***]% to this Gross Profit. Should the actual Gross Profit be significantly higher or lower than this estimate, the Parties shall, at the end of the Measurement Period occurring prior fiscal year in question, reach an amical agreement in good faith on another Lump-Sum Amount per Analyzer. The Purchaser shall be obligated to inform the Sellers of any possible change in the use of the Analyzers within one month of the end of each fiscal year. The Sellers shall assert any objections to the Closing DateLump-Sum Amount in writing within one month of receipt of such notice. If, within two (2) months of the Seller receiving notice of the objections, the Parties have not reached agreement on a new Lump-Sum Amount, a new Lump-Sum Amount shall, at the request of both Parties, be bindingly determined by an expert arbitrator appointed by the IHK [German Chamber of Industry and prepared Commerce] on the basis of the economic grounds used to determine the original Lump-Sum Amount. The expert shall set the costs of his/her mandate in accordance with GAAP§§ 91 ff. Buyer ZPO [German Code of Civil Procedure]. 7.3 The maximum Earn-Out shall endeavor be a total of EUR 9,000,000.00 (in good faith words: nine million euro) net, plus the legal value-added tax; there shall be no right to deliver payment of an Earn-Out beyond this amount. 7.4 If, so that the Purchaser or any of its contractual partners may use the Gyronimo Platform, the Purchaser or its contractual partners should be required to acquire licenses from third parties due to impending violation of the third-party property rights specified in Annex 7.4, which the Purchaser has identified or may still identify in the future, during due diligence freedom-to-operate research, as possibly conflicting, the Purchaser may deduct the licensing fees to be paid to these third parties from the Earn-Out to be paid to the Representative Sellers, although the Statement Sellers shall always receive, as Earn-Out, minimum licensing fees of EBITDA by August 15, 2008, in the case [***]% of the preceding clause net sales revenue pursuant to Clause 7.6. Any licenses required for assay technology (xe.g., qPCR, primers, probes, dyes, and quenchers), assay content (e.g., biomarkers), and within 20 Business Days after the Sales Eventbackground operating system licenses (e.g., in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”Windows), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); providedbe explicitly excluded from this stack-cap regulation. This shall only apply, however, that if it is determined, after completion the third-party property rights conflict with the Gyronimo Platform at its stage of development as of the Statement of EBITDA, Execution Date. 7.5 Clauses 6 and after completion of 7.1 shall correspondingly apply if the time and procedure described in Section 3(e)(iv) below if Representative disputes Purchaser does not itself sell the Statement of EBITDA, that EBITDA Application Cartridges or Analyzers for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets Gyronimo Platform but rather licenses them to a third party or allows third parties to sell them, or if it commercializes the Gyronimo Platform, in its current or in a further-developed form, in another manner (other than an Affiliate of Buyer) (a “Sales Event”)e.g., and (B) it is determined, after completion sale or licensing of the Statement of EBITDAGyronimo Platform to a third party). In this case, and after completion the Sellers shall be compensated as if the Purchaser had achieved the Milestones or as if the third parties’ net sales revenues were those of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to SellersPurchaser. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. 7.6 If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to Purchaser itself sells the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e)Gyronimo Platform Application Cartridges, “EBITDANet Sales Revenue” as defined in this Agreement shall mean the sum of net income of gross amounts invoiced for Gyronimo Platform Application Cartridges sold by the Company for Purchaser, minus the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.following items:

Earn-Out. (a) Seller shall be entitled to receive the following payments (each, an “Earn Out Payment”) to the extent the Business achieves the applicable Gross Profit (as defined below) targets: (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event An Earn Out Payment equal to seventy percent (70%) of annual Gross Profit (as hereinafter defineddefined below) of the Business above One Million Five Hundred Thousand Dollars ($1,500,000) for the trailing twelve (12) month period from the first anniversary of the Closing Date (the “Initial Earn Out Period”); (ii) An Earn Out Payment equal to seventy percent (70%) of annual Gross Profit (as defined below) of the Business above One Million Five Hundred Thousand Dollars ($1,500,000) for the trailing twelve (12) month period from the second anniversary of Closing Date (the “Second Earn Out Period” and together with the Initial Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”)); and (iii) In the event that any Inventory included in the Purchased Assets is not purchased during the Initial Earn Out Period, or any Accounts Receivables included in the Purchased Assets are not paid during the Initial Earn Out Period (the “Unpurchased/Unpaid Amount”), then such Unpurchased/Unpaid Amount shall be deducted from the Earn Out Payment due following the Initial Earn Out Period, or if such Unpurchased/Unpaid Amount exceeds the Earn Out Payment due following the Initial Earn Out Period, then such amounts shall be deducted from the Earn Out Payment due following the Second Earn Out Period. If any Unpurchased/Unpaid Amounts are subsequently sold or paid, the Seller shall be entitled to receive such amounts in full.. (b) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to the Representative Seller a statement of EBITDA (as defined in Section 3(e)(v) below) the Gross Profit of the Business for such Earn Out Period (the “Statement of EBITDAEarn Out Statement”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative Seller shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each receipt of the first three fiscal quarters Earn Out Statement (the “Earn Out Review Period”) to review the calculation of Gross Profit for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer’s offices, upon reasonable prior notice and solely for purposes reasonably related to the Measurement determinations of Gross Profit and the resulting Earn Out Payment. Prior to the expiration of the Review Period; provided, howeverSeller may object to the Gross Profit calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, that which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the Gross Profit calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the Gross Profit and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute resolution procedures set forth below will only apply to a nationally recognized accounting firm mutually agreeable to the Statement Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of EBITDA delivered pursuant to Section 3(e)(i) abovean accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The Representative decision of the accounting firm shall have until be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) shall be paid on the date that is thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used date on which it is determined Seller is entitled to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)such Earn Out Payment. (vd) For purposes of this Section 3(e)Agreement, “EBITDAGross Profit” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, the amount invoiced to customers less (ii) income tax expense for such periodexpenses charged by any 3rd party (except Buyer and its affiliates) directly related to that job or account. Such expenses shall include but not be limited to COGS, decoration, setup fees, 3rd party warehousing and (iii) depreciation expensefulfillment charges, amortization expense inbound and other non-cash expenses for such periodoutbound shipping, in each case, measured in accordance with GAAPduties/taxes and credit card fees.

Earn-Out. Consideration (2022). (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event On the Earn-Out Payment Date (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA 2022) (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to BuyerParent’s and Purchaser’s offset rights under Sections 2(b) and 15(fset forth in Section 11.7, Parent shall, or shall cause Purchaser to, pay to each Selling Shareholder an amount in cash equal to such Selling Shareholder’s Earn-Out Cash Allocation (2022); provided, however, in the case of each Selling Shareholder that if it is determineda Continuing Employee, after completion or whose controlling equity holder is a Continuing Employee, such Continuing Employee must remain continuously employed by a Purchaser Entity until the earlier of (A) the Statement Earn-Out Payment Date (2022) or (B) the date of EBITDAa Change of Control (such earlier date, and after completion of the time and procedure described “Earn-Out End Date (2022)”) in Section 3(e)(ivorder for such Selling Shareholder to be eligible to receive its Earn-Out Cash Allocation (2022) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% ThresholdContinuous Employment Requirement (2022)”); provided, then Buyer shallfurther, subject if the employment of such Continuing Employee is terminated by the applicable Purchaser Entity without Cause, by such Continuing Employee for Good Reason or due to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stockdeath or Disability, in each case, prior to the Earn-Out Payment Date (2022), the Continuous Employment Requirement (2022) shall be deemed satisfied and such Selling Shareholder (or its heirs, if applicable) shall be entitled to receive its Earn-Out Cash Allocations (2022) on the Earn-Out Payment Date (2022). (ii) Within sixty (60) days following December 31, 2022, Parent shall, or shall cause Purchaser to, deliver to the Sellers’ Representative a schedule prepared in an amount equal to (1) the applicable amounts set good faith and setting forth in Sections 2(a)(ii)(A) reasonable detail Parent’s and 2(a)(ii)(BPurchaser’s calculation of the EBITDA Actual Amount (2022), respectivelythe EBITDA Achievement Percentage (2022), multiplied by the Earn-Out Consideration (22022), the Per Share Earn-Out Consideration (2022), the Earn-Out Cash Allocation (2022) a fractionfor each Selling Shareholder, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portionamount, if any, of the Measurement Period occurring prior by which such Earn-Out Consideration (2022) was reduced to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due satisfy Parent’s and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided Purchaser’s offset rights set forth in Section 3(e)(iii) below. 11.7 (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “PostEarn-Closing Earn Out Conditions Following a Sales EventCalculations Schedule (2022)”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if in the Postevent a Change of Control is expected to occur prior to December 31, 2022, Parent shall, or shall cause Purchaser to, deliver the Earn-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iiiCalculations Schedule (2022) to pay all or any portion the Sellers’ Representative at least fifteen (15) days prior to the date of the Earn Out to Sellerssuch Change of Control. (iviii) Buyer will deliver Following delivery of the Earn-Out Calculations Schedule (2022), Parent and Purchaser shall allow the Sellers’ Representative reasonable access to such information, books, records, work papers, personnel and resources of Parent, Purchaser and the Acquired Companies, in each case, to the Representative a quarterly statement of EBITDA for the Company prepared extent used in accordance with GAAP within thirty (30) days after the end of each Parent’s and Purchaser’s preparation of the first three fiscal quarters during Earn-Out Calculations Schedule (2022). For purposes of this Agreement, the Measurement Period; provided, however, that “Earn-Out Payment Date (2022)” shall be on the dispute resolution procedures set forth below will only apply to the Statement earlier of EBITDA delivered pursuant to Section 3(e)(i(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be following final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses determination of the Independent Accountant shall be paid oneEarn-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate Out Consideration (defined below2022) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(sSection 1.3(d)(i) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (vand Section 1.3(d)(ii) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such periodbelow, (ii) income tax expense for such periodif no dispute is raised pursuant to Section 1.3(d), on the earlier of (A) thirty-five (35) days following the delivery of the Earn-Out Calculations Schedule (2022), or (B) ten (10) days following receipt by Parent and Purchaser of written notice from the Sellers’ Representative that the Earn-Out Calculations Schedule (2022) is not disputed, or (iii) depreciation expensein the event the Accelerated Earn-Out Consideration is payable due to a Change of Control, amortization expense and other non-cash expenses for a date that is on or prior to the date of such period, in each case, measured in accordance with GAAPChange of Control.

Earn-Out. (ia) As soon as practicable after June 30Independent of any amounts paid by Buyer to Seller under Section 2.2 hereof, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), the Parties intend to provide for the possible payment by the Buyer shall prepare and deliver of additional consideration to the Representative a statement Seller based on the financial performance of EBITDA (the GMC Program and the Healthy Families Program as defined in Section 3(e)(v) below) operated by the Buyer during the 36 months following the Closing Date (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “PostEarn-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount CertificateOut”). (vb) For purposes The Seller’s Earn-Out shall be based on the aggregate premium revenues under both the GMC Contract and the Healthy Families Contract, less aggregate medical expenses under the GMC Contract and the Healthy Families Contract, each determined in a manner consistent with Buyer’s historical ordinary course practices (the “Gross Margin Amount”). The Gross Margin Amount shall be measured over the twelve-month period immediately following the Closing Date, and over the next two successive twelve-month periods (each such twelve-month measuring period being referred to herein as an “Earn-Out Period”). (c) If the Gross Margin Amount during any Earn-Out Period is less than $8,800,000, then the Buyer shall not pay the Seller any Earn-Out payment for that Earn-Out Period. If the Gross Margin Amount equals or exceeds $8,800,000 during the applicable Earn-Out Period, then the Buyer shall pay the Seller fifteen percent (15%) of the Gross Margin Amount for such Earn-Out Period. (d) In no event shall the aggregate Earn-Out payments paid by the Buyer to the Seller exceed $3,500,000. In the event the aggregate Earn-Out payments to the Seller have equaled $3,500,000, or in the event that 36 months have elapsed since the Closing Date, no further Earn-Out payments shall be made by the Buyer to the Seller. (e) Within 90 days of the end of each applicable Earn-Out Period, the Buyer shall deliver to the Seller a written calculation of the Earn-Out payment, if any, for the applicable Earn-Out Period, together with a check representing the amount of the Earn-Out payment, if any. The Buyer shall also give reasonable access to the Seller and its accountants and financial consultants, upon reasonable notice, to review the work papers and calculations used by the Buyer in its determination of the Earn-Out payment, including but not limited to review of historical and current incurred but not reported calculations. (f) If the Seller disputes the Buyer’s calculation of the Earn-Out payment, the Seller shall so notify the Buyer in writing within ten days after receipt of the written calculation referred to in this Section 3(e2.3. The Parties shall then attempt to resolve such dispute regarding the Earn-Out payment within ten days. If the Parties are unable to resolve their dispute, the Parties shall then submit the matter to a mutually agreed-upon accounting firm (“Accounting Firm”), “EBITDA” who shall mean calculate the sum of net income Earn-Out payment as described above. The Accounting Firm shall submit its written calculation of the Company for the Measurement Period plus (Earn-Out to the extent deducted in determining Parties within 45 days. If the CompanyAccounting Firm’s net income) (i) interest expense for such periodcalculation shows the Earn-Out payment to be equal to or less than the amount determined by the Buyer, (ii) income tax expense for such periodthen the Seller shall pay the Accounting Firm’s fees and expenses. If the Accounting Firm’s calculation shows the Earn-Out payment to be greater than the amount determined by the Buyer, then the Buyer shall pay the Accounting Firm’s fees and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAPexpenses.

Earn-Out. (ia) As soon as practicable after June 30part of the Merger Consideration, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer Digirad shall prepare and deliver to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portionpay Earn-Out Payments, if any, to the Stockholders on the following terms and conditions: (i) for each of the Measurement 2015 Earn-Out Period, the 0000 Xxxx-Xxx Period, and the 2017 Earn-Out Period occurring prior (each such earn-out period, an “Earn-Out Period” and collectively, the “Earn-Out Term”), to the extent the EBITDA earned by the Surviving Corporation exceeds the applicable Earn-Out Threshold for that Earn-Out Period, Digirad shall pay to each Stockholder his or her Pro Rata Share of fifty percent (50%) of EBITDA earned by the Surviving Corporation in excess of the applicable Earn-Out Threshold for the related Earn-Out Period (each an “Earn-Out Payment”), subject to clause 2.13(a)(ii) below; (ii) fifty percent (50%) of all Earn-Out Payments for the 2015 and 2016 Earn-Out Periods shall be retained by Digirad (and shall accrue interest at a rate of 90-day LIBOR plus 2% simple interest per annum) until the end of the Earn-Out Term in order to satisfy resolution of any Potential Claims and to pay expenses related thereto (the “Earn-Out Escrow”), at which time any amount remaining of the Earn-Out Escrow (plus accrued interest) shall be paid to the Stockholders (with each Stockholder receiving his or her Pro Rata Share); and (iv) in the aggregate, the Earn-Out Payments shall not exceed $400,000 for the entire Earn-Out Term. By way of illustration and not limitation: (A) if during the 2015 Earn-Out Period (that portion of the 2015 calendar year beginning on the Closing Date), the EBITDA achieved by the Surviving Corporation is $300,000 in excess of the Earn-Out Threshold for such period, such excess EBITDA will be divided $75,000 to the Stockholders (with each Stockholder receiving his or her Pro Rata Share), $75,000 to Digirad for inclusion in the Earn-Out Escrow, and $150,000 to Digirad, (B) if during the 2016 Earn-Out Period (the 2016 calendar year), the EBITDA achieved by the Surviving Corporation is $450,000 in excess of the Earn-Out Threshold for such period, such excess EBITDA will be divided $112,500 to the Stockholders (with each Stockholder receiving his or her Pro Rata Share), $112,500 to Digirad for inclusion in the Earn-Out Escrow, and $225,000 to Digirad, (C) if during the 2017 Earn-Out Period (the 2017 calendar year), the EBITDA achieved by the Surviving Corporation is $50,000 in excess of the Earn-Out Threshold for such period, such excess EBITDA will be divided $25,000 to the Stockholders (with each Stockholder receiving his or her Pro Rata Share) and prepared $25,000 to Digirad and (D) if Digirad used $100,000 of the Earn-Out Escrow amount in accordance connection with GAAP. Buyer shall endeavor in good faith expenses related to deliver Potential Claims, Digirad would release $87,500 to the Representative Stockholders (with each Stockholder receiving his or her Pro Rata Share) at the Statement of EBITDA by August 15, 2008, in the case conclusion of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) belowEarn-Out Term. (iib) Except as provided in Section 3(e)(iiiEach Earn-Out Payment shall be made to Stockholders on an annual basis, with each Stockholder receiving his or her Pro Rata Share no later than the earlier of: (a) below in ten (10) days after Digirad has filed its Annual Report on Form 10-K with the event SEC covering the applicable Earn-Out Period, or (b) 105 days after the end of Digirad’s fiscal year covering the applicable Earn-Out Period. Each Earn-Out Payment shall (i) be accompanied by a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** statement (the “Required EBITDA AmountEarn-Out Statement”) that describes in reasonable detail how the Earn-Out Payment was calculated and (ii) be paid by wire transfer of immediately available funds to such account as is directed by each Stockholder. Digirad shall send a copy of the Earn-Out Statement to Stockholder Representative at the same time the Earn-Out Statement is sent to Stockholders. Digirad shall, and shall direct its employees to, cooperate with Stockholder Representative and its professionals, and provide them with access to all books and records of MD Office necessary for their review of the Earn-Out Statement. (c) Stockholder Representative may dispute Digirad’s calculation of any Earn-Out Payment by notifying Digirad in writing, setting forth in reasonable detail the particulars of such disagreement (the “Notice of Objection”), then Buyer within fifteen (15) days after receipt of Earn-Out Statement by the Stockholder Representative. To the extent not set forth in the Notice of Objection, the Stockholder Representative and the Stockholders shall promptly pay the Earn Out be deemed to Sellershave agreed with all other calculations, subject to Buyer’s rights under Sections 2(b) items and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(Athe Earn-Out Statement. In the event that Stockholder Representative does not deliver an Notice of Objection to Digirad within fifteen (15) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where days after the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion Stockholder Representative’s receipt of the Earn Earn-Out Statement, the Stockholders shall be deemed to Sellers; and provided further, however, that if it is determined, after completion have accepted Digirad’s calculation of the Statement Earn-Out Payment set forth in the Earn-Out Statement. In the event that an Notice of EBITDAObjection is timely delivered, Digirad and Stockholder Representative shall use their respective commercially reasonable efforts and exchange any information reasonably requested by the other party for a period of fifteen (15) days after completion the receipt by Digirad of the time and * Certain information on this page has been omitted and filed separately with Notice of Objection (the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn “Earn-Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales EventResolution Period”), or such longer period as they may agree in writing, to resolve any disagreements set forth in the Notice of Objection. If Digirad and Stockholder Representative are unable to resolve such disagreements within the Earn-Out Resolution Period (Bthe items that remain in dispute at the end of such period (the “Unresolved Items”)) it is determinedthen, after completion at any time thereafter, either Stockholder Representative or Digirad may require that an Independent Accountants shall resolve the Unresolved Items. Upon selection of the Statement Independent Accountants, each of EBITDADigirad and Stockholder Representative shall submit an analysis of the Unresolved Items. Digirad and Stockholder Representative shall instruct the Independent Accountants to determine as promptly as practicable, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP event within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provideddate, however, that the on which such dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit referred to the Independent Accountant in writing not later than fifteen (15) days after Accountants, based solely on the provisions of this Agreement and the written presentations by Stockholder Representative and Digirad, the value of the Unresolved Items. The determination of the Independent Accountant is retained their respective positions with respect Accountants shall be set forth in a written statement delivered to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Stockholder Representative and Buyer Digirad and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final final, conclusive and binding onon the parties, and nonappealable by, the Representative and Buyerabsent fraud or manifest error. The fees and expenses disbursements of the Independent Accountant Accountants under this Section 2.13 shall be paid one-half borne jointly and severally by Stockholders unless the Sellers and one-half by Buyer; provided, however, that if EBITDA for adjustments to the Unresolved Items resulting from Stockholder Representatives’ delivery of the Notice of Objection caused change in the applicable Measurement Period Earn-Out Payment, as finally determined amended by Digirad prior to its submission to the Independent Account and set forth Accountants, in the Settlement Amount Certificate excess of Ten Thousand Dollars (defined below$10,000) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyerin favor of Stockholders, then Buyer shall pay 100% of the in which case such fees and expenses of the Independent Accountant. The decision of the Independent Accountant disbursements shall take into consideration the respective positions and supporting documentation submitted be borne exclusively by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)Digirad. (vd) For purposes of this Section 3(eIn the event an Independent Accountants is not selected or has not agreed to serve within the 10 Business Day period following the Working Capital Resolution Period or the Earn-Out Resolution Period (or such longer period as agreed to in writing by Stockholder Representative and Digirad), “EBITDA” shall mean then the sum parties agree that any dispute, controversy or claim arising out of net income or relating to calculations of the Company or for the Measurement Period plus (Closing Statement, the Post-Closing Adjustment and the Earn-Out Payments shall be settled promptly by arbitration pursuant to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAPSection 8.07.

Earn-Out. (a) With respect to the period of time beginning on (and including) the first day of Buyer’s first full accounting month after the Closing Date (such first day being December 31, 2012) and ending on (and including) the last day of the twelfth consecutive full accounting month following the Closing Date (such last day being December 29, 2013) (such period of time, “Year One”), Seller shall be entitled to the following amount (if any) based upon the COH (as defined below) for Year One (any such payment, an “Earn-Out Payment”): (i) As soon as practicable after June 30if COH for Year One is less than or equal to $2,700,000, 2008then Seller shall not be entitled to any Earn-Out Payment for such period of time; (ii) if the COH for Year One is greater than $2,700,000 but less than $3,650,000, or, if sooner, as soon as practicable after a Sales Event then Seller shall be entitled to receive an Earn-Out Payment for such period of time that is equal to: $750,000 multiplied by the result of: (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below1) (the “Statement COH for Year One minus $2,700,000) divided by (2) $950,000; or (iii) if the COH for Year One is greater than or equal to $3,650,000, then Seller shall be entitled to receive an Earn-Out Payment for such period of EBITDA”time that is equal to $750,000. (b) measured in U.S. dollars for With respect to the period of time beginning on (xand including) the twelve first day of Buyer’s thirteenth full accounting month after the Closing Date (12) calendar months ending June such first day being December 30, 2008 or 2013) and ending on (yand including) in the event last day of a Sales Event prior to June 30the 24th consecutive full accounting month following the Closing Date (such last day being December 28, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”2014) (including such period of time, “Year Two”), Seller shall be entitled to an Earn-Out Payment (if any) based upon the portionCOH for Year Two: (i) if the COH for Year Two is less than or equal to $2,700,000, then Seller shall not be entitled to any Earn-Out Payment for such period of time; (ii) if the COH for Year Two is greater than $2,700,000 but less than $4,800,000, then Seller shall be entitled to receive an Earn-Out Payment for such period of time that is equal to the positive difference, if any, of resulting from: (1) [$1,500,000 multiplied by the Measurement Period occurring prior to result of: (A) (the Closing DateCOH for Year Two minus $2,700,000) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to divided by (B) $2,100,000] minus (2) [the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause Earn-Out Payment for Year One (xif any), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below.]; or (iiiii) Except as provided in Section 3(e)(iii) below in if the event COH for Year Two is greater than or equal to $4,800,000, then Seller shall be entitled to receive an Earn-Out Payment for such period of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** $1,500,000 minus the Earn-Out Payment for Year One (if any). For illustrative purposes only, if the “Required EBITDA Amount”)COH for Year One is $3,000,000, then Buyer Seller shall promptly pay the Earn be entitled to receive an Earn-Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, Payment for such period of time that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of $236,842.10, which equals $750,000 multiplied by the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to result of: (1) the applicable amounts set forth in Sections 2(a)(ii)(A$3,000,000 minus $2,700,000 (or $300,000) and 2(a)(ii)(B), respectively, multiplied divided by (2) a fraction$950,000. In addition, where for illustrative purposes only, if the numerator shall equal EBITDA COH for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(ivfollowing year (Year Two) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Thresholdwas $3,500,000, then no Earn Out Seller shall be due and Buyer shall have no obligation entitled to pay all or any portion receive an Earn-Out Payment for such period of time that is equal to $334,586.47, which equals (1) [$1,500,000 multiplied by the Earn Out to Sellers, except as provided in Section 3(e)(iiiresult of: (A) below($3,500,000 minus $2,700,000) divided by (B) $2,100,000] minus (2) [$236,842.10]. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (vc) For purposes of this Section 3(e)1.6, “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, “COH” (iior Contribution to Overhead) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured shall be calculated by Buyer in accordance with GAAPBuyer’s accounting methods, policies, practices and procedures and shall mean, for each applicable year (e.g., Year One and Year Two), (x) the revenue earned by the Business for such year, minus (y) the cost of services to the Business for such year, which shall consist of billable staffing contractor payments, the temporary payroll, temporary payroll Taxes, temporary benefits paid by Buyer or its Affiliates (as defined below) with respect to the Business, and worker’s compensation insurance cost associated with the temporary payroll, minus (z) expenses relating to the branch of the Business, which shall not include any allocation of corporate overhead from Buyer to Seller.

Earn-Out. As additional consideration for the Transferred Assets, Buyer shall pay to Seller (each an “Earn-Out Payment”) upon the achievement by or on behalf of Buyer of the following multiples for the twelve (12) month period ending on the first anniversary of the Closing Date (the “First Earn-Out Period”) and the twelve (12) month period ending on the second anniversary of the Closing Date (the “Second Earn-Out Period” and, each of the First Earn-Out Period and the Second Earn-Out Period, an “Earn-Out Period” and, together, the “Earn-Out Periods”), respectively: (i) As soon as practicable after June 30On the first anniversary of the Closing Date, 2008$750,000 upon and subject to the Business attaining ARR for the twelve (12) month period ending on the first anniversary of the Closing Date of no less than $9,334,186.00 (“First ARR Threshold Amount”); (ii) On the second anniversary of the Closing Date, or$750,000, if soonerupon and subject to the Business attaining ARR for the twelve (12) month period ending on the second anniversary of the Closing Date of no less than $11,667,733.00 (the “Second ARR Threshold Amount”). Within ninety (90) days of the first anniversary of the Closing Date and the second anniversary of the Closing Date, as soon as practicable after a Sales Event (as hereinafter defined)applicable, Buyer shall prepare and deliver to the Representative Seller a statement setting forth its calculations of EBITDA the First ARR Threshold Amount and the Second ARR Threshold Amount, as applicable (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each casestatements, the “Measurement PeriodARR Statements”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative After receiving an ARR Statement, Seller shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after to review and any dispute or objection that Seller has thereunder shall be pursued in accordance with the Independent Accountant is retained their respective positions with respect to provisions of Section 2.7(a)(i) below, substituting “ARR Statement” for Closing NWC Statement”. Within fifteen (15) days of the Statement end of EBITDA and their respective calculation the final resolution of EBITDA for the applicable Measurement PeriodEarn-Out Payment, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% or cause to be paid the corresponding Earn-Out Payment in cash by wire transfer of immediately available funds to the bank account whose wire instructions Seller shall provide to Buyer. If the Business does not achieve the threshold required for Seller to receive such Earn-Out Payment then the corresponding payment will not be due or payable and Seller shall forfeit all right, title and interest to such portion of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)Contingent Consideration. (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (a) Subject to, and in accordance with, the other provisions of this Section 2.12, if during the first 12 full calendar months following the Closing Date (the “Review Period”), the product obtained by multiplying the Operating Income of Purchaser’s Non-Telecommunications Business during such period times ten exceeds the Base Valuation, Purchaser (or one or more Purchasing Subsidiaries) shall pay Seller an amount (the “Earn-out Payment”) equal to such difference (the “Valuation Gap”) in cash or in AsiaInfo Shares having an aggregate Market Value as of the last Business Day of the Review Period equal to such difference. The use of cash or AsiaInfo Shares to satisfy the Earn-out Payment shall be at the sole and absolute discretion of Purchaser. For the avoidance of doubt, no businesses, assets or companies acquired by Purchaser after the date hereof, other than as contemplated in this Agreement, shall be included in Operating Income for purposes of the Earn-out Payment. (b) During the Review Period, Purchaser shall operate the Business only in the ordinary course and any transaction relating to the Business between Purchaser and its Affiliates shall be an arm’s-length, negotiated transaction on terms that shall not be less or more favorable than terms that would have been received from an unrelated party. During the Review Period, Purchaser will afford Seller and its Representatives (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver access to the Representative a statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, financial records of the Measurement Period occurring prior to the Closing DateNon-Telecommunications Business as Seller may reasonably request and (ii) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (make copies and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commissionextracts therefrom. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out The Earn-out Payment shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. made within ninety (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (3090) days after the end of each the Review Period (A) in the event of payment in cash, by wire transfer to an account designated by Seller, or (B) in the event of payment in AsiaInfo Shares, by delivering a certificate reflecting the number of AsiaInfo Shares to be issued or delivered by Purchaser under this Section 2.12. In the event that the Earn-out Payment is made in AsiaInfo Shares, such shares shall not be subject to the lock-up provisions in Section 5.17(a) and Seller shall be entitled to one demand registration on Form S-3 in respect of such shares pursuant to the Registration Rights Agreement. (c) Within sixty days following the end of the first three fiscal quarters during Review Period, Purchaser shall (A) prepare or cause to be prepared a statement setting forth the Measurement Period; providedOperating Income of the Business, howeverwhich shall be calculated in accordance with U.S. GAAP, that for the dispute resolution procedures set forth below will only apply Review Period (the “Post-Closing Statement”) and (B) deliver or cause to be delivered to Seller the Statement of EBITDA delivered pursuant to Section 3(e)(iPost-Closing Statement. (d) above. The Representative shall have until thirty (30) During the twenty business days after immediately following the receipt by Seller of the Post-Closing Statement of EBITDA (the “Seller’s Review Period”), Seller and its accountants and attorneys shall be entitled to review such statementitems and any working papers, trial balance and similar materials relating thereto prepared by Purchaser, its accountants or other personnel. If Seller in good faith disagrees with the Representative disputes BuyerPost-Closing Statement, Seller may deliver to Purchaser, within Seller’s Review Period, a notice (the “Earn-out Objection Notice”) setting forth in reasonable detail (A) the amounts with which Seller disagrees and the basis for such disagreement and (B) Seller’s proposed corrections to the Post-Closing Statement. Seller shall be deemed to have agreed with all amounts contained in the Post-Closing Statement of EBITDA, he shall so notify Buyer on or to which no specific objection has been made. If Seller does not deliver an Earn-out Objection Notice prior to the expiration of such 30-day period. Buyer Seller’s Review Period, Seller shall be deemed to agree in all respects with Purchaser’s calculation of the Operating Income of the Business for the Review Period, and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized amounts set forth in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Post-Closing Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding onupon Seller and Purchaser. (e) If an Earn-out Objection Notice is properly and timely delivered, Seller and nonappealable by, Purchaser shall negotiate in good faith with each other to resolve the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and disputed amounts set forth in the Settlement Amount Certificate (defined below) is closer Earn-out Objection Notice. If the parties are unable to resolve the EBITDA calculation submitted by disputed amounts set forth in the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% Earn-out Objection Notice within five calendar days after Seller’s delivery of the fees Earn-out Objection Notice to Purchaser, the parties shall cause the Reviewing Accountant to promptly review this Agreement and expenses the disputed amounts in the Post-Closing Statement for the purpose of calculating the Operating Income of the Independent AccountantBusiness for the Review Period. The decision of In making any such calculations, the Independent Reviewing Accountant shall take into consideration consider only those amounts in the respective positions and supporting documentation submitted by Post-Closing Statement as to which Seller has, in the Representative and Buyer pursuant to the preceding clause (i)Earn-out Objection Notice, but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)disagreed. (vf) For purposes of this Section 3(e)The Reviewing Accountant shall deliver to Seller and Purchaser, “EBITDA” shall mean as promptly as practicable, but no later than ten (10) calendar days after the sum of net income Reviewing Accountant are engaged, a written report setting forth its calculation of the Company for disputed amounts. Upon such delivery, such report and the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for calculations set forth therein shall be final and binding upon Seller and Purchaser. The cost of such period, (ii) income tax expense for such period, review and (iii) depreciation expense, amortization expense report shall be borne equally by Seller and other non-cash expenses for such period, in each case, measured in accordance with GAAPPurchaser.

Earn-Out. (a) Earn-out Payment. As potential additional Merger Consideration, at such time as provided in Section 2.05(c), Buyer shall pay to Seller, with respect to the period beginning on January 1, 2015 and ending December 31, 2015 (the “Calculation Period”), an amount (the “Earn-out Payment”) equal to Five Hundred Thousand Dollars ($500,000) if and only if the Adjusted EBITDA for the Calculation Period is equal to or greater than Five Hundred Thousand Dollars ($500,000) (the “EBITDA Threshold”); provided, that in no event shall Buyer be obligated to pay Seller more than $500,000 in the aggregate pursuant to this Section 2.05. The Earn-out Payment shall in no event exceed Five Hundred Thousand Dollars ($500,000). If the Adjusted EBITDA for the Calculation Period does not meet or exceed the applicable EBITDA Threshold, no Earn-out Payment shall be due for the Calculation Period. For purposes of clarity, if the Adjusted EBITDA for the Calculation Period is Four Hundred and Ninety-Nine Thousand Nine Hundred and Ninety Nine Dollars ($499,999), then no Earn-out Payment shall be owed. (b) Procedures Applicable to Determination of the Earn-out Payment. (i) As soon as practicable On or before the date which is sixty (60) days after June 30December 31, 2008, or, if sooner, as soon as practicable after a Sales Event 2015 (as hereinafter definedthe “Earn-out Calculation Delivery Date”), Buyer shall prepare and deliver to the Representative Seller a written statement of EBITDA (as defined in Section 3(e)(v) below) (the “Statement of EBITDAEarn-out Calculation Statement”) measured setting forth in U.S. dollars reasonable detail its determination of Adjusted EBITDA for the Calculation Period and its determination whether the Earn-out Payment shall be paid to Seller (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Earn-out Determination”). (ii) Seller shall have forty-five (45) days after receipt of the Earn-out Calculation Statement (the “Review Period”) (including to review the portionEarn-out Calculation Statement and the Earn-out Determination set forth therein. During the Review Period, if any, of the Measurement Period occurring prior to the Closing Date) Seller and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative its representatives shall have the right to dispute inspect the Statement books and records of the Company and the Surviving Company during normal business hours at the Surviving Company’s offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of Adjusted EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below the resulting Earn-out Payment. Prior to the expiration of the Review Period, Seller may object to the Earn-out Calculation set forth in the event Earn-out Calculation Statement for the Calculation Period by delivering a written notice of a Sales Event objection (an “Earn-out Calculation Objection Notice”) to Buyer. Any Earn-out Calculation Objection Notice shall specify the items in the Earn-out Calculation disputed by Seller and shall describe in reasonable detail the basis for such objection, as hereinafter defined) well as the amount in dispute. If Seller fails to deliver an Earn-out Calculation Objection Notice to Buyer prior to June 30, 2008, if it is determined, after completion the expiration of the Review Period, then the Earn-out Determination set forth in the Earn-out Calculation Statement of EBITDAshall be final and binding on the parties hereto. If Seller timely delivers an Earn-out Calculation Objection Notice, Buyer and after completion Seller shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the time Adjusted EBITDA and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portionEarn-out Payment, if any, of for the Measurement Period occurring prior Calculation Period. If Buyer and Seller are unable to reach agreement within fifteen (15) days after such an Earn-out Calculation Objection Notice has been given, all unresolved disputed items shall be promptly referred to the Closing Date) is equal Independent Accountant. The Independent Accountant shall be directed to or greater than ****************************** ********** (render a written report on the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested unresolved disputed items with respect to the omitted portions. procedure described Earn-out Determination as promptly as practicable, but in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or event greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after such submission to the end of each of the first three fiscal quarters during the Measurement Period; providedIndependent Accountant, however, that the dispute resolution procedures and to resolve only those unresolved disputed items set forth below will only apply in the Earn-out Calculation Objection Notice. If unresolved disputed items are submitted to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDAIndependent Accountant, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer Seller shall each submit furnish to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect such work papers, schedules and other documents and information relating to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or unresolved disputed items as the Independent Accountant requestsmay reasonably request. The Independent Accountant shall resolve the disputed items based solely on the applicable definitions and other terms in this Agreement and the presentations by Buyer and Seller, and (ii) not by independent review. The resolution of the dispute and the calculation of Adjusted EBITDA that is the subject of the applicable Earn-out Calculation Objection Notice by the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, on the Representative and Buyerparties hereto. The fees and expenses of the Independent Accountant shall be paid one-half borne by Seller and Buyer in proportion to the Sellers and one-half amounts by Buyer; provided, however, that if which their respective calculations of Adjusted EBITDA for the applicable Measurement Period differ from Adjusted EBITDA as finally determined by the Independent Account Accountant. (c) Timing of Payment of Earn-out Payment. The Earn-out Payment, if any, that Buyer is required to pay pursuant to Section 2.05(a) hereof shall be paid in full no later than seven (7) Business Days following the date upon which the determination of Adjusted EBITDA for the Calculation Period becomes final and set forth binding upon the parties as provided in the Settlement Amount Certificate Section 2.05(b)(ii) (defined below) is closer to the EBITDA calculation submitted including any final resolution of any dispute raised by the Representative than to the EBITDA calculation submitted by Buyer, then Seller in an Earn-out Calculation Objection Notice). Buyer shall pay 100% to Seller the Earn-out Payment, if any, in cash by wire transfer of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant immediately available funds to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used bank account for Seller previously provided to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. In addition to the Cash Purchase Price, as additional consideration for the Purchased Assets, Purchaser shall pay to the Company an earn-out based on the following: (i) As soon as practicable after June 30Purchaser shall pay to the Company $1.17 for every $1 of revenue in excess of $4,450,000 generated by the Infinity Division in the period (the “Earn-Out Period”) from the Closing Date through August 1, 20082007, orbased on actual cash collected against invoices billed during such period (the “Earn-Out Amount”). The Infinity Division will have until November 1, if sooner2007 (the “Earn-Out Collection Period”) to collect such cash on invoices billed during the Earn-Out Period. If, as soon as practicable after a Sales Event (as hereinafter defined)of August 1, Buyer 2007 the Infinity Division has generated revenues by collecting cash in excess of $4,450,000 during the Earn-Out Period, then the Purchaser shall prepare and deliver pay to the Representative Company the Earn-Out Amount applicable to such revenues on or before September 15, 2007. To the extent additional revenues are received during the Earn-Out Collection Period, the Purchaser shall then have until 45 days after the Earn-Out Collection Period to pay the remainder of the applicable Earn-Out Amount to the Company. If the Purchaser fails to timely make the required Earn-Out Amount payment, in addition to any other rights the Company may have to pursue the Earn-Out Amount, then the Company shall have the option, upon 30 days’ written notice to the Purchaser, to require the return of the that portion of the Purchased Assets that are then in the possession of, or under the control of, the Purchaser, and upon receipt of such notice and the subsequent failure of the Purchaser to remedy such non-payment with the 30-day notice period, the Purchaser shall promptly facilitate a statement re-transfer of EBITDA the Purchased Assets to the Company. The Purchaser also agrees with the Company and the Shareholders that prior to the expiration of the later to expire of the date by which Purchaser must pay the Earn-Out Amount or the Supplemental Earn-Out Amount (as defined in Section 3(e)(v) below) (the later of such dates being referred to as the “Statement of EBITDAOutside Payment Date”) measured in U.S. dollars that the Purchaser shall neither sell the Infinity Software to a third party outside the ordinary course of business (for (x) the twelve (12) calendar months ending June 30example, 2008 or (y) licenses to customers in the event ordinary course of a Sales Event business would be permitted) or grant any exclusive licenses concerning the Infinity Software, and if, prior to June 30, 2008the end of the Outside Payment Date, the period from Purchaser does either sell the Infinity Software to a third party outside the ordinary course of business or grant any exclusive licenses concerning the Infinity Software, then the maximum Earn-Out Amount (unless in such case the Earn-Out Period has then expired and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portionactual Earn-Out Amount owed, if any, of and unpaid can be calculated, in which case such Earn-Out Amount owed and unpaid shall be due), or any unpaid portion thereof, and the Measurement maximum Supplemental Earn-Out Amount (unless in such case the Supplemental Earn-Out Period occurring prior has then expired and the actual Supplemental Earn-Out Amount owed, if any, and unpaid can be calculated, in which case such Supplemental Earn-Out Amount owed and unpaid shall be due), or any unpaid portion thereof, shall be deemed payable to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement Company as of EBITDA by August 15, 2008, in the case of the preceding clause (x)such sale or exclusive license date, and within 20 Business Days after any such sales shall be considered void until the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) belowapplicable owed Earn-Out Amount and/or Supplemental Earn-Out Amount are paid. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer The Earn-Out Amount shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) belownot exceed $4,000,000. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it any Shareholder is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring terminated without cause prior to the Closing Date) through end of the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “PostEarn-Closing Earn Out Conditions Following a Sales Event”)Period, then Buyer shall promptly pay the Earn terminated Shareholder’s Proportionate Share of the maximum Earn-Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out Amount of $4,000,000 shall be due under this Section 3(e)(iii) deemed earned and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer immediately to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”)Company upon such termination. (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (ia) As soon Subject to Section 1.5(h), in addition to the Final Purchase Price, and as practicable additional consideration for the purchase of the Target Company Interests, within sixty (60) days after June 30the end of calendar years 2021, 20082022 and 2023 (each such calendar year, or, if sooner, as soon as practicable after a Sales Event (as hereinafter definedan “Earn-Out Period”), Buyer shall prepare and deliver pay to the Representative a statement of EBITDA (as defined Sellers in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008accordance with their Pro Rata Portion, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portionEarn-Out Payment, if any, of for the Measurement Period occurring prior to the Closing Date) and prepared applicable Earn-Out Period, in accordance with GAAPthis Section 1.5 (each, an “Earn-Out Payment”). As determined by Buyer shall endeavor in good faith its sole and absolute discretion, any portion of an Earn-Out Payment may be made by wire transfer of immediately available funds to deliver an account designated by Sellers’ Representative or through the issuance of the required number (rounded down to the Representative nearest whole number) of shares of common stock of Buyer’s parent company, Blade Air Mobility, Inc., based on the Statement average closing price of EBITDA by August 15, 2008, in such shares for the case thirty (30)-day period immediately preceding the date of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Earn-Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f)Payment; provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is no less than 70% of any Earn-Out Payment shall be made in cash. (b) If the Required Contracted EBITDA Amount and equal to or greater than ****** percent (***%) of generated during the Required EBITDA Amount calendar year 2021 (the “***% Threshold2021 Contracted EBITDA”)) is greater than the 2021 Contracted EBITDA Target, then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly will pay a portion Sellers by wire transfer of the Earn immediately available funds an Earn-Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, Payment in an amount equal to (1i) the applicable amounts set forth in Sections 2(a)(ii)(A) positive difference between the 2021 Contracted EBITDA and 2(a)(ii)(B), respectively2021 Contracted EBITDA Target, multiplied by (2ii) a fraction, where twelve (12). If the numerator shall equal 2021 Contracted EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold2021 Contracted EBITDA Target, then no Earn Out Sellers shall be due and pay Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. amount by which the 2021 Contracted EBITDA Target exceeds the 2021 Contracted EBITDA (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event2021 Contracted EBITDA Shortfall”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if any such payment will be paid from the Post-Closing Earn Out Conditions Following Escrow Account (pursuant to a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) joint written instruction from Buyer and Buyer shall have no obligation under this Section 3(e)(iiiSellers’ Representative) to pay all or the extent any portion of the Earn Escrow Amount remains in the Escrow Account at such time and any remainder of the 2021 Contracted EBITDA Shortfall in excess of the Escrow Amount will be deducted from any future Earn-Out to SellersPayments. (ivc) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer Contracted EBITDA generated during calendar year 2022 (the “Independent Accountant2022 Contracted EBITDA”) to resolve any remaining disputes concerning is greater than the Statement of EBITDA. If 2021 Contracted EBITDA and the Independent Accountant is retained2021 Contracted EBITDA Target, then Buyer will pay Sellers by wire transfer of immediately available funds an Earn-Out Payment in an amount equal to (i) the Representative and Buyer shall each submit to positive difference between the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of 2022 Contracted EBITDA and their respective calculation of the higher of: (A) the 2021 Contracted EBITDA for and (B) the applicable Measurement Period2021 Contracted EBITDA Target, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and multiplied by (ii) the Independent Accountant shall, within thirty six (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”6). (vd) For purposes If the Contracted EBITDA generated during calendar year 2023 (the “2023 Contracted EBITDA”) is greater than the 2022 Contracted EBITDA, the 2021 Contracted EBITDA, and the 2021 Contracted EBITDA Target, then Buyer will pay Sellers by wire transfer of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (immediately available funds an Earn-Out Payment in an amount equal to the extent deducted in determining the Company’s net income) (i) interest expense for such periodthe positive difference between the 2023 Contracted EBITDA and the higher of: (A) the 2022 Contracted EBITDA, (B) the 2021 Contracted EBITDA and (C) the 2021 Contracted EBITDA Target, multiplied by (ii) income tax expense for such period, and three (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP3).

Earn-Out. (i) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after a Sales Event (as hereinafter defined), Buyer shall prepare and deliver 3.5.1 Subject to the Representative terms and conditions set forth in this Section 3.5, the Seller shall be entitled to receive further payments in addition to the Net Purchase Price pursuant to Section 3.1 for the Shares sold by the Seller, depending on the performance of the Company in the financial years 2010, 2011 and 2012 (hereinafter referred to as the “Relevant Years” and each a statement “Relevant Year” and the consideration hereinafter referred to as the “Earn Out Amounts” and each an “Earn Out Amount”). The Earn Out Amounts shall be made in three annual installments independently from another, subject to the achievement of EBITDA (a certain performance of the Company in each of the Relevant Years as defined in Section 3(e)(v3.5.3 (1) belowthrough (3). 3.5.2 The Earn Out Amounts shall be calculated on the basis of the actual results of earnings before interest and taxes (“EBIT”) of the Company for the Relevant Year pursuant to the definition of EBIT set forth in Annex 3.5.2 (as adjusted to reflect that extraordinary items and events as described in more details in Annex 3.5.2 will not be taken into account) (hereinafter referred to as the “Actual EBIT”). 3.5.3 Based on the Actual EBIT, the Earn Out Amount for each Relevant Year shall be calculated as follows: (1) Relevant Year 2010 If the Company’s Actual EBIT amounts to a minimum of EUR 2,500,000.00 in the Relevant Year 2010, the Earn Out Amount for the Relevant Year 2010 shall be EUR 200,000.00. If the Company’s Actual EBIT is less than EUR 2,500,000.00 in the Relevant Year 2010, the Seller shall not be entitled to an Earn Out Amount for the Relevant Year 2010. (2) Relevant Year 2011 If the Company’s Actual EBIT amounts to a minimum of EUR 2,900,000.00 in the Relevant Year 2011, the Earn Out Amount for the Relevant Year 2011 shall be EUR 225,000.00. If the Company’s Actual EBIT in the Relevant Year 2010 was less than EUR 2,500,000.00 but the aggregate Actual EBIT for the Relevant Years 2010 and 2011 amounts to at least EUR 5,400,000.00, the Earn Out Amount for the Relevant Year 2011 shall be increased by EUR 200,000.00 to EUR 425,000.00. If the Company’s Actual EBIT is less than EUR 2,900,000.00 in the Relevant Year 2011, the Seller shall not be entitled to an Earn Out Amount for the Relevant Year 2011. (3) Relevant Year 2012 If the Company’s Actual EBIT amounts to a minimum of EUR 3,500,000.00 in the Relevant Year 2012, the Earn Out Amount for the Relevant Year 2012 shall be EUR 250,000.00. If the Company’s Actual EBIT in the Relevant Year 2011 was less than EUR 2,900,000.00 but the aggregate Actual EBIT for the Relevant Years 2011 and 2012 amounts to at least EUR 6,400,000.00, the Earn Out Amount for the Relevant Year 2012 shall be increased by EUR 225,000.00 to EUR 475,000.00. If the Company’s Actual EBIT is less than EUR 3,500,000.00 in the Relevant Year 2012, the Seller shall not be entitled to an Earn Out Amount for the Relevant Year 2012. 3.5.4 The Company’s Actual EBIT for each Relevant Year shall be derived (abgeleitet) from the audited financial statements of the Company for the financial years 2010, 2011 and 2012, as the case may be. As promptly as possible and in any event not later than 30 April of the year following the relevant financial year, the Company shall prepare and have audited, and Purchaser shall ensure that the Company prepares and has audited, the financial statements in accordance with the applicable provisions of the German Commercial Code and the German generally accepted accounting principles as consistently applied with past practice, maintaining the same accounting and valuation principles, methods and rules. The auditor certifying the financial statements shall at the same time calculate the respective Earn Out Amount for each Relevant Year in accordance with the provisions of this Section 3.5, applying the principles set forth in Annex 3.5.2 and Section 3.5.3 (hereinafter referred to as the “Earn Out Calculation”). Forthwith (unverzüglich) upon the audit of the financial statements of the Company for the respective financial year, the Purchaser shall deliver to the Seller the Earn Out Calculation for each Relevant Year together with a copy of the audited financial statements of the Company for its review. 3.5.5 The Seller and its auditors shall have full access to the management, employees, books and accounts as well as other financial data of the Company and to the working papers of the auditor of the Company as is reasonably necessary for the review of the financial statements and the Earn Out Calculation. The Purchaser shall procure that upon request of the Seller the Company grants such access and that the Company’s auditor shall be released from its professional confidentiality obligation for the benefit of the Seller and its auditor, and that upon such request the Company authorizes and instructs its auditor to grant access to its working papers and any related documentation to the extent it is necessary to review the Earn Out Calculation. 3.5.6 Within 30 Business Days as of the delivery of the Earn Out Calculation and the copy of the audited financial statements, the Seller shall submit to the Purchaser any objections against the Earn Out Calculation, as the case may be, by providing the Purchaser with a written statement of objections, specifying in reasonable detail the grounds for the objections (hereinafter referred to as the “Statement of EBITDAObjections”) measured ). If and to the extent the Seller does not object during such period in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008such manner, the period from Earn Out Calculation shall become final and after July 1, 2007, through binding upon the Business Day immediately preceding Parties. 3.5.7 If and to the closing date of such Sales Event (in each case, extent the “Measurement Period”) (including Seller and the portion, if any, Purchaser cannot agree on the objections of the Measurement Period occurring prior to the Closing Date) and prepared Seller as set forth in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and Objections within 20 30 Business Days after receipt by the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion Purchaser of the Statement of EBITDAObjections as duly submitted pursuant to Section 3.5.6, either the Seller or the Purchaser may present the not agreed objections to a neutral auditor from an auditing firm of international or German national recognition to be jointly designated by the Seller and after completion the Purchaser within additional 15 Business Days (the “Neutral Auditor”) or, failing such agreement on the Neutral Auditor, each Party may request for the Neutral Auditor to be appointed by the Institute of Auditors in Germany (Institut der Wirtschaftsprüfer in Deutschland e.V.) in Düsseldorf, to decide upon the time and procedure described issue in Section 3(e)(iv) below if Representative disputes dispute by way of an arbitrary opinion (Schiedsgutachten). The Neutral Auditor shall only decide on the items in dispute as notified by the Purchaser in the Statement of EBITDA, that EBITDA for Objections and shall give the Measurement Period (including Seller and the portion, if any, Purchaser adequate opportunity to present their views in writing and at a hearing to be held in the presence of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period Seller and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) abovePurchaser and/or their advisors. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes BuyerNeutral Auditor’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, as among the Representative and Buyerrespective Parties. The fees and expenses costs of the Independent Accountant Neutral Auditor shall be paid one-half by allocated to the Sellers and one-half by Buyer; provided, however, that if EBITDA for respective Parties in accordance with the applicable Measurement Period as finally determined by the Independent Account and rules set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% Sections 91 et seq. of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause German Code on Civil Procedure (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”Zivilprozessordnung). 3.5.8 The Earn Out Amount for each Relevant Year shall be due within one week after the Earn Out Calculation has become final and binding pursuant to Section 3.5.6 or Section 3.5.7, as the case may be. 3.5.9 Should the Purchaser during the period between Closing Date and the end of the Relevant Year 2012, i.e. 31 December 2012, (vi) For purposes liquidate or dissolve the Company or (ii) sell and/or transfer the shares in the Company or conduct comparable actions which lead to a change-of-control in the voting rights in the Company or (iii) sell and/or transfer the material assets of the Company, the Seller shall be entitled to receive immediately upon such occurrence the amounts set out in the table below if the minimum enterprise values achieved in such event: Enterprise Values achieved in Relevant Year below at least EUR 17,251,000.00 at least EUR 20,011,200.00 at least EUR 24,151,400.00 2010 Earn Out Amount = EUR 600,000.00 2011 Earn Out Amount = EUR 400,000.00 2012 Earn Out Amount = EUR 250,000.00 Should there be any such occurrence, any such payment shall be additional to any Earn Out Amount that has been earned and shall not affect in any way any Earn Out Amount that may be due or that may become due with respect to any completed Relevant Year prior to such occurrence. In this case the right to any annual Earn Out Amount for the Relevant Year that is still incomplete and any future Relevant Year terminates. 3.5.10 In case that the Company is merged by way of universal succession under the German Transformation Act into the Purchaser or any other legal entity, such legal successor of the Company shall be deemed to be the Company in the sense of this Section 3(e), “EBITDA” 3.5 and the provisions therein shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAPapply accordingly.

Earn-Out. (a) If the aggregate EBITDA, as defined below, of Holdings for the five fiscal years ending December 31, 2006 equals or exceeds two billion nine hundred eight million dollars ($2,908,000,000), then C&A Products and/or any of its Subsidiaries shall pay Parent and/or designated Subsidiaries of Parent the earn-out amount specified in Schedule G hereto (the "Earn-Out Amount"). Earn-Out Amounts between the fixed points including and in excess of three billion two hundred ninety seven million dollars ($3,297,000,000) in the column on Schedule G entitled "5-Year Cumulative EBITDA" shall be determined by interpolation. The term "EBITDA" shall mean (i) As soon as practicable after June 30the Consolidated Cash Flow, 2008, or, if sooner, as soon as practicable after a Sales Event minus Projected Time Adjusted Acquisition Cash Flow (as hereinafter definedexcluding any Consolidated Cash Flow attributable to any Receivables Financing Subsidiary), Buyer provided that (A) the term "EBITDA" shall prepare be substituted for the term "Adjusted Consolidated Pro Forma Coverage Ratio" in the applicable definitions, (B) the term "consolidated Subsidiary" shall be substituted for the term "Restricted Subsidiary" in the applicable definitions, (C) any net income or loss described in section (vi) of the definition of Consolidated Net Income shall be included in the calculation of Consolidated Net Income and deliver (D) lease payments, or the functional equivalent thereof (including payments of principal and interest in connection with any synthetic lease arrangement or similar financing arrangement), relating to the Representative a statement of EBITDA (as defined equipment initially subject to the transaction described in Section 3(e)(v5.21 shall be added to Consolidated Cash Flow to the extent such payments were deducted in computing Consolidated Net Income, plus (ii) below) to the extent that it is not included in the calculation of Consolidated Cash Flow pursuant to (the “Statement of EBITDA”) measured in U.S. dollars for i), (x) the twelve (12) calendar months ending June 30Consolidated Cash Flow minus Projected Time Adjusted Acquisition Cash Flow, 2008 or but substituting the term "Textron Automotive Holdings Italy S.r.l." for the term "Company" and deleting the term "Restricted Subsidiary" in all applicable definitions, and (y) discounts and interest relating to factoring. (Capitalized terms in the event of a Sales Event prior to June 30, 2008, the period from and after July 1, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative sentence shall have the right meaning ascribed to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below them in the event Certificate of a Sales Event (as hereinafter definedDesignation.) prior All claims to June 30, 2008, if it is determined, after completion of Earn-Out Amounts are subordinate to any amounts due under the Statement of EBITDA, and after completion of the time and procedure financings described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) belowDebt Commitment Letter. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAP.

Earn-Out. (a) As additional consideration for the Purchased Membership Interests, at such times as provided in Section 2.5(e), Purchaser shall pay to Sellers with respect to each of the two Calculation Periods within the Earn-Out Period an amount (each, an “Earn-Out Payment”), if any, equal to the product of (i) As soon an amount equal to (A) the EBITDA for such Calculation Period, minus (B) the EBITDA Threshold for such Calculation Period; multiplied by (ii) the Earn-Out Multiple. If the EBITDA for a particular Calculation Period does not exceed the applicable EBITDA Threshold, no Earn-out Payment shall be due for such Calculation Period. (b) Upon any acquisition of an asset or business by the Acquired Companies or a restructuring of the Acquired Companies as practicable after June 30permitted by Section 2.5(f), 2008, orthe Parties shall negotiate in good faith to determine whether the results of operations of such asset or business (or any change resulting from such restructuring) shall be included in the computation of EBITDA for any Calculation Period and, if soonerso, the appropriate change to the EBITDA, if any. Without prior agreement of the Parties, there shall be no change to the EBITDA Threshold for such Calculation Period. Notwithstanding any decision made by the Parties with respect to the preceding sentence, any Seller employed or engaged as a consultant by Purchaser and its Affiliates shall manage, operate or otherwise provide services to any asset or business acquired that is within the operational knowledge and experience of any Seller so employed or engaged after the Closing Date, as soon as practicable requested by Purchaser. The EBITDA for any Calculation Period shall not be increased or diminished by revenues earned or costs or expenses incurred on direction of Purchaser and its Affiliates in the acquisition or operation of any asset or business acquired without the agreement of Sellers. (c) On or before the date that is sixty (60) days after a Sales Event the last day of each of the two Calculation Periods (as hereinafter definedeach such date, an “Earn-Out Calculation Delivery Date”), Buyer Purchaser shall prepare and deliver to the Representative Sellers a written statement (in each case, an “Earn-Out Calculation Statement”) setting forth in reasonable detail its determination of EBITDA for the applicable Calculation Period and its calculation of the resulting Earn-Out Payment (as defined in Section 3(e)(v) below) (the each case, an “Statement of EBITDAEarn-Out Calculation”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from ). Purchaser shall provide Sellers and after July 1, 2007, through the Business Day immediately preceding the closing date their Representatives copies of such Sales Event records and work papers used or created in connection with preparation of each Earn-Out Calculation Statement that are reasonably required to support such Earn-Out Calculation Statement. Such records and work papers shall be held in confidence by Sellers and their Representatives and not used for any purpose except in connection with the calculation of EBITDA and the related Earn-Out Payment and the resolution of any dispute arising with respect thereto. (d) Sellers shall have thirty (30) days after receipt of the Earn-Out Calculation Statement for each Calculation Period (in each case, the “Measurement Review Period”) (including to review the portionEarn-Out Calculation Statement and the Earn-Out Calculation set forth therein. During the Review Period, if any, of the Measurement Period occurring prior to the Closing Date) Sellers and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative their Representatives shall have the right to dispute inspect the Statement Purchaser’s Books and Records related to the Business during normal business hours at Purchaser’s offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below the resulting Earn-Out Payment. Prior to the expiration of the Review Period, Seller may object to the Earn-Out Calculation set forth in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Earn-Out Calculation Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement applicable Calculation Period by delivering a written notice of objection (including an “Earn-Out Calculation Objection Notice”) to Purchaser. Any Earn-Out Calculation Objection Notice shall specify the portionitems in the applicable Earn-Out Calculation disputed by Sellers and shall describe in reasonable detail the basis for such objection, if any, as well as the amount in dispute and Sellers’ calculation of the Measurement Period occurring each item in dispute. If Sellers fail to deliver an Earn-Out Calculation Objection Notice to Purchaser prior to the Closing Date) is equal to or greater than ****************************** ********** (expiration of the “Required EBITDA Amount”)Review Period, then Buyer shall promptly pay the Earn Earn-Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts Calculation set forth in Sections 2(a)(ii)(A) the Earn-Out Calculation Statement shall be final and 2(a)(ii)(B)binding on the parties hereto. If Sellers timely deliver an Earn-Out Calculation Objection Notice, respectively, multiplied by (2) a fraction, where Purchaser and Sellers shall negotiate in good faith to resolve the numerator shall equal disputed items and agree upon the resulting amount of the EBITDA and the Earn-Out Payment for the Measurement Period applicable Calculation Period. If Purchaser and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation Sellers are unable to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP reach agreement within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; providedsuch an Earn- Out Calculation Objection Notice has been given, however, that the dispute resolution procedures set forth below will only apply all unresolved disputed items shall be promptly referred to the Statement of EBITDA delivered pursuant to Section 3(e)(i) aboveAccounting Firm. The Representative Accounting Firm shall have until thirty (30) days after be directed to render a written report on the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions unresolved disputed items with respect to the Statement of EBITDA applicable Earn-Out Calculation as promptly as practicable, but in no event greater than sixty (60) days after such submission to the Accounting Firm, and their respective calculation of EBITDA for to resolve only those unresolved disputed items set forth in the Earn-Out Calculation Objection Notice. If unresolved disputed items are submitted to the Accounting Firm, Purchaser and Sellers shall each furnish to the Accounting Firm such work papers, schedules and other documents and information relating to the unresolved disputed items as the Accounting Firm may reasonably request. The Accounting Firm shall resolve the disputed items based solely on the applicable Measurement Perioddefinitions and other terms in this Agreement and the presentations by Purchaser and Sellers, together with such supporting documentation and not by independent review. In resolving the dispute, the Accounting Firm, acting in the capacity of an expert and not as they deem necessary or as an arbitrator, shall (i) limit its review to matters specifically set forth in the Independent Accountant requestsEarn-Out Calculation Objection notice (other than matters thereafter resolved by mutual written agreement of Purchaser and Sellers), and (ii) not assign a value to any item greater than the Independent Accountant shallgreatest value for such item or less than the smallest value for such item, within thirty (30) days after receiving in each case, claimed by Purchaser in the positions Earn-Out Calculation or Sellers in the Earn-Out Calculation Objection, as applicable. The resolution of both the Representative dispute and Buyer and all supplementary supporting documentation requested the calculation of EBITDA that is the subject of the applicable Earn-Out Calculation Objection Notice by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision Accounting Firm shall be final and binding on, and nonappealable by, on the Representative and Buyerparties hereto. The fees and expenses of the Independent Accountant Accounting Firm shall be paid one-half borne by the Sellers and one-half Purchaser in proportion to the amounts by Buyer; provided, however, that if which their respective calculations of EBITDA for the applicable Measurement Period differ from EBITDA as finally determined by the Independent Account and set forth in the Settlement Amount Certificate Accounting Firm. (defined belowe) Subject to Section 2.5(g), any Earn-Out Payment that Purchaser is closer required to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to Section 2.5(a) hereof shall be paid in full no later than thirty (30) Business Days following the preceding clause (i), but shall ultimately be derived solely from date upon which the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision determination of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Calculation Period becomes final and binding upon the parties as provided in Section 2.01(c) (including any final resolution of any dispute raised by Sellers in an Earn-Out Calculation Objection Notice). Purchaser shall pay to Sellers the “Settlement Amount Certificate”)applicable Earn-Out Payment in cash by wire transfer of immediately available funds to the bank account(s) for Sellers designated by the Sellers. (vf) For purposes Subject to the terms of this Section 3(e)Agreement, “EBITDA” subsequent to the Closing, Purchaser shall mean have sole discretion with regard to all matters relating to the sum of net income operation of the Company for Business of the Measurement Period plus (Acquired Companies, including, but not limited to, restructuring the Acquired Companies; provided, that Purchaser shall not, directly or indirectly, take any actions in bad faith that would have the purpose of avoiding or reducing any of the Earn-Out Payments hereunder. Notwithstanding the foregoing, Purchaser has no obligation to operate the extent deducted Business of the Acquired Companies in determining order to achieve any Earn-Out Payment or to maximize the Company’s net income) amount of any Earn-Out Payment. Sellers acknowledge that (i) there is no assurance that Sellers will receive any Earn-Out Payment and Purchaser has not promised or projected any Earn-Out Payment, and (ii) the parties solely intend the express provisions of this Agreement to govern their contractual relationship. (g) Purchaser shall have the right to withhold and set off against any amount otherwise due to be paid pursuant to this Section 2.5 the amount of (i) any Damages, as finally determined in accordance with the provisions of Article 8, to which any Purchaser Indemnified Party may be entitled and (ii) any other amounts due Purchaser from Sellers. (h) The Parties understand and agree that (i) the contingent rights to receive any Earn-Out Payment shall not be represented by any form of certificate or other instrument, are not transferable, except by operation of Laws relating to descent and distribution, divorce and community property, and do not constitute an equity or ownership interest expense for such periodin Purchaser or the Acquired Companies, (ii) income tax expense for such periodSellers shall not have any rights as a securityholder of Purchaser or the Acquired Companies as a result of Sellers’ contingent right to receive any Earn-Out Payment hereunder, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance no interest is payable with GAAPrespect to any Earn- Out Payment.

Earn-Out. In addition to the Closing Shares payable and issuable at the Closing pursuant to this Section 2.1, the Shareholders shall be entitled to receive the Earn-Out Amount determined and payable as provided in this Section 2.1(n). (i) As soon The parties agree that, during the Earn-Out Period, (A) the operations previously conducted by the Company in the New York Region shall be conducted as practicable after June 30, 2008, ora separate subsidiary or division of PentaStar with no other operations other than the operations of DSS, if sooneracquired, (B) the Acquiror shall account for its operations in the New York Region in accordance with the accounting practices of PentaStar, (C) budgets (including for new hires, compensation and marketing shall be mutually constructed by PentaStar and the designee of Mr. Xxxxxx xxx Mr. Xxxxxxx (xx long as soon as practicable after a Sales Event (as hereinafter definedMr. Xxxxxx xx Mr. Xxxxxxx xx employed by the Acquiror), Buyer which designee shall prepare initially be Mr. Xxxxxx (xxould Mr. Xxxxxx xxxse to serve as designee while employed by the Acquiror or leave the employment of the Acquiror, such designee shall be Mr. Xxxxxxx xx he is at that time employed by the Acquiror), (D) the business of the Acquiror shall be conducted by the Acquiror and/or PentaStar in the usual and deliver ordinary course of PentaStar's business operations and neither the Acquiror nor PentaStar shall have any Liability to the Representative a statement of EBITDA Shareholders or any other Person for so conducting the business and (as defined in Section 3(e)(v) below) (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (yE) in operating the event business of a Sales Event prior to June 30, 2008the Acquiror, the period from and after July 1Acquiror and/or PentaStar may make decisions or take action with respect to the business of the Acquiror that impacts, 2007directly or indirectly, through positively or negatively, the potential benefit of the Earn-Out arrangement. If the Shareholders believe that the Acquiror and/or PentaStar has made a decision or taken an action which will have a material adverse effect on the potential benefit to the Shareholders of the Earn-Out arrangement, the Shareholders' Agent shall so notify PentaStar (which notice shall also set forth the Shareholders' belief as to the potential adverse effect thereof) within 10 Business Day immediately preceding the closing date Days of any Shareholder having knowledge of such Sales Event (decision or action, and PentaStar and the Shareholders' Agent shall thereafter attempt in each case, good faith to determine the “Measurement Period”) (including the portionmost appropriate course of action to mitigate such adverse effect, if any. However, the parties further agree that, absent conduct engaged in by the Acquiror and/or PentaStar with the purpose of materially adversely affecting the potential benefit to the Shareholders of the Measurement Period occurring Earn-Out arrangement, neither the Acquiror nor PentaStar shall have any Liability to the Shareholders or any other Person arising from or relating to its or their conduct of the business of the Acquiror or any decisions made or actions taken with respect to the business of the Acquiror, including, without limitation, those of the type contemplated by clauses (D) or (E) above or by the following paragraph. Nothing in this Agreement shall preclude PentaStar from simultaneously selling into the areas of the Acquiror's operations through other Subsidiaries or its own activities. The Acquiror shall not call on, solicit, market to or sell to any Person which, as of the date of the first contact with such Person, is an existing or prospective customer of PentaStar. For purposes of the foregoing, an "existing customer" shall mean a Person to whom a sale has been made by, or involving as agent for the seller, PentaStar (including for this purpose any Person or business acquired by PentaStar), through a Subsidiary or its own activities, within the one-year period prior to the Closing Date) and prepared in accordance with GAAP. Buyer For purposes of the foregoing, a "prospective customer" shall endeavor in good faith mean a Person whom PentaStar (including for this purpose any Person or business acquired by PentaStar), through a Subsidiary or its own activities, has made a proposal to deliver within the six-month period prior to the Representative the Statement date of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) belowthis Agreement. (ii) Except As soon as provided reasonably practicable after January 31, 2002 and in Section 3(e)(iii) below in the any event of a Sales Event (as hereinafter defined) prior to June by April 30, 20082002, if it is determined, after completion PentaStar shall determine the Earn-Out EBITA and the Growth Customer EBITA and prepare a written calculation of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Earn-Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post"Earn-Closing Earn Out Conditions Following a Sales Event”Financial Statements"), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due . PentaStar's determination under this Section 3(e)(iii2.1(n)(ii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (to the extent deducted in determining the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured made in accordance with GAAP., on a basis consistent with the accounting practices of PentaStar. PentaStar shall promptly provide a copy of the Earn-Out Financial Statements to the Shareholders. The Shareholders and their representatives shall be given reasonable access to all documentation and work papers for the purpose of reviewing each Earn-Out Financial Statement. Within 30 days after receipt of the Earn-Out Financial Statements, the Shareholders shall, in a

Earn-Out. If, following the Closing, a minimum average monthly gross revenue of $1.2 million (ithe “Revenue Target”) As soon as practicable after June 30, 2008, or, if sooner, as soon as practicable after during the three-month period immediately preceding the 90-day anniversary of the Closing Date (the “Earn-Out Period”) at a Sales Event (as hereinafter defined), Buyer shall prepare and deliver to the Representative a statement of EBITDA minimum 28% Gross Margin (as defined in Section 3(e)(vbelow)(the “Margin Target”) has been earned from the operations of the Business, then Xxxxxxx Xxxx (being the Stockholder to whom the entire right to receive the Earn-Out Payment (as defined below) has been allocated pursuant to Section 2.7) shall be paid the Earn-Out Target Payment. If the Business during the Earn-Out Period fails to achieve the Revenue Target and the Margin Target, Xxxxxxx Xxxx shall receive the same percentage of the Earn-Out Target Payment as the actual revenues achieved therefrom bears to the Revenue Target, provided that the average monthly revenues for the Earn-Out Period are not less than $750,000 and the Margin Target is achieved with respect to such revenues. Notwithstanding the foregoing, the Earn-Out Target Payment shall be paid (the “Statement of EBITDA”) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30, 2008 or (yi) in the event that gross revenues from the Business in the month of August 2007 is at least $1.5 million and the Margin Target is met, (ii) in the event the gross revenues from the Business during any calendar month of the Earn-Out Period is at least $1.5 million (the “Super Revenue Target”) and the Margin Target is met or (iii) upon termination of Xxxxxxx Xxxx without “cause” or resignation of Xxxxxxx Xxxx for “good reason” during the Earn-Out Period (each as defined in the Xxxx Employment Agreement). The payment made to Xxxxxxx Xxxx under this Section 2.10 is sometimes hereinafter referred to as the “Earn-Out Payment.” For the absence of doubt, only one Earn-Out Payment shall be payable. As used herein “Gross Margin” shall mean advertising revenues minus publisher payments; provided, however, as a Sales Event prior condition to June 30the payment of the Earn-Out Payment pursuant to clause (i) above only, 2008write-offs for bad debts shall not exceed 5% of revenues during the Earn-Out Period. Xxxxxxx Xxxx shall have the full authority to conduct the Business, including the management of day-to-day affairs thereof, during the Earn-Out Period in a manner consistent with the conduct of the Business before the closing; provided such Business is conducted in accordance with applicable Laws. Within 15 days after the end of the Earn-Out Period, or, in the event that the Earn-Out Payment is earned in the month of August 2007 pursuant to clause (i) above, on or before September 17, 2007, the period from chief financial officer of Parent shall calculate and provide a written report to Xxxxxxx Xxxx disclosing the actual results and the amount of the Revenue Target or Super Revenue Target, as appropriate, and Margin Target achieved, and pay any amount that is due and owing to Xxxxxxx Xxxx hereunder no later than 60 days after July the end of the Earn-Out Period or, in the event that the Earn-Out Payment is earned in the month of August 2007 pursuant to clause (i) above, as follows: on October 1, 2007, through an amount equal to $800,000 and the Business Day immediately preceding the closing date remainder of such Sales Event Earn-Out Payment within 3 Business Days of the receipt by Parent or its Affiliates of each additional 5% (or, with respect to the final payment, such lesser percentage) of the Super Revenue Target realized until the receipt by Parent or its Affiliates of 95% of the Super Revenue Target, at which time remainder of the full Earn-Out Payment shall be paid within 3 Business Days. Unless written objection is received by the Parent within 30 days the report of the CFO shall be final and binding on the parties, absent manifest error. All amounts and calculations required shall in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared case be determined in accordance with GAAP. Buyer shall endeavor in good faith to deliver to Notwithstanding the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative shall have the right to dispute the Statement of EBITDA (and any items therein) as provided in Section 3(e)(iv) below. (ii) Except as provided in Section 3(e)(iii) below in the event of a Sales Event (as hereinafter defined) prior to June 30, 2008, if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is equal to or greater than ****************************** ********** (the “Required EBITDA Amount”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the Required EBITDA Amount and equal to or greater than ****** percent (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1) the applicable amounts set forth in Sections 2(a)(ii)(A) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectivelyforegoing, the “PostCEO or CFO may accelerate the Earn-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of the first three fiscal quarters during the Measurement Period; provided, however, that the dispute resolution procedures set forth below will only apply to the Statement of EBITDA delivered pursuant to Section 3(e)(i) above. The Representative shall have until thirty (30) days after the receipt of the Statement of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; provided, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth in the Settlement Amount Certificate (defined below) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer pursuant to the preceding clause (i), but shall ultimately be derived solely from the Company’s financial statements used to produce Buyer’s financial statements filed with the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income of the Company for the Measurement Period plus (Payment to the extent deducted in determining that the Company’s net income) (i) interest expense for such period, (ii) income tax expense for such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such period, in each case, measured in accordance with GAAPRevenue Target has been achieved.

Earn-Out. (ia) As soon as practicable after June 30Earn-Out Shares. In the event Pacific Magtron, 2008, or, if sooner, as soon as practicable after a Sales Event Inc. (as hereinafter defined"PMI"), Buyer shall prepare Pacific Magtron (GA), Inc. ("PMI-GA"), and deliver to LiveWarehouse, Inc. ("LW") achieve the Representative a statement of EBITDA Milestones (as defined in Section 3(e)(v4.3(b) below) for any year during the three (the “Statement of EBITDA”3) measured in U.S. dollars for (x) the twelve (12) calendar months ending June 30year period commencing January 1, 2008 or (y) in the event of a Sales Event prior to June 30, 2008, the period from 2005 and after July 1expiring December 31, 2007, through the Business Day immediately preceding the closing date of such Sales Event (in each case, the “Measurement Period”) (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) and prepared in accordance with GAAP. Buyer shall endeavor in good faith to deliver to the Representative the Statement of EBITDA by August 15, 2008, in the case of the preceding clause (x), and within 20 Business Days after the Sales Event, in the case of the preceding clause (y). Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Statement of EBITDA. The Representative Executive shall have the right to dispute receive on March 31 of the Statement immediately following calendar year, the applicable ratable portion of EBITDA 66,666,666 shares of restricted common stock of ACT (priced at $.01 per share, or $666,666 in the aggregate), to be earned at the end of each such year at the rate of 25% for each of the first and any items therein) as provided in Section 3(e)(iv) below. second years and 50% for the third year (ii) Except as provided in Section 3(e)(iii) below the "Shares"); provided, that in the event the Milestones are not achieved in any year, except as provided below, such ratable portion of Shares shall be forfeited entirely, without any ability to re-earn such Shares in a Sales Event future year; provided further, that in the event Executive's employment with the Company is terminated for "cause" by the Company (as hereinafter definedcontemplated by Section 6.1 of this Agreement) prior to June 30, 2008, if it is determined, after completion the expiration of the Statement of EBITDAinitial Employment Period, and after completion all of the time and procedure described in Section 3(e)(iv) below if Representative disputes Shares earned or to be earned by Executive shall be forfeited. In the Statement of EBITDA, event that EBITDA for Executive's employment with the Measurement Period (including the portion, if any, of the Measurement Period occurring Company is terminated prior to the Closing Date) is equal expiration of the initial Employment Period for any reason other than "cause," Executive shall be permitted to or greater than ****************************** ********** receive the Shares earned by him prior to such termination, but shall in no event be entitled to receive Shares to be earned after the Termination Date (as defined in Section 6.1 below). Notwithstanding the “Required EBITDA Amount”)foregoing, then Buyer the number of Shares and the price per Share shall promptly pay be adjusted accordingly for stock splits, reverse stock splits and other recapitalizations effected by ACT, so that Executive retains the Earn Out right, after accounting for such adjustment, to Sellersreceive the same percentage of ACT's outstanding shares of Common Stock as Executive would have had the right to receive had such adjustment not been so effected. Upon earning the Shares at the end of each year, subject if applicable, the Shares will be placed in escrow with a mutually agreeable escrow agent to Buyer’s rights under Sections 2(b) be held and 15(f)released in accordance with the terms of an escrow agreement in substantially the form of Exhibit "A" hereto; provided, however, that if it in the event that the employment of Executive is determined, after completion of terminated by the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring Company prior to the Closing Date) expiration of the initial Employment Period without cause (as contemplated by Section 6.2 of this Agreement), Executive terminates this Agreement for Good Reason (as contemplated by Section 6.3 of this Agreement), or this Agreement is less terminated due to Executive's death or Disability (as defined below), Executive shall receive any Shares earned by him no later than the Required EBITDA Amount and equal to or greater than ****** percent later of (***%) of the Required EBITDA Amount (the “***% Threshold”), then Buyer shall, subject to Buyer’s rights under Sections 2(b) and 15(f), promptly pay a portion of the Earn Out payable in cash and a portion of the Earn Out payable in shares of Buyer Common Stock, in each case, in an amount equal to (1a) the applicable amounts set forth in Sections 2(a)(ii)(Aimmediately following March 31 or (b) and 2(a)(ii)(B), respectively, multiplied by (2) a fraction, where the numerator shall equal EBITDA for the Measurement Period and the denominator shall equal the Required EBITDA Amount, whereupon Buyer shall have no further obligation to pay any remaining portion of the Earn Out to Sellers; and provided further, however, that if it is determined, after completion of the Statement of EBITDA, and after completion of the time and * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) is less than the ***% Threshold, then no Earn Out shall be due and Buyer shall have no obligation to pay all or any portion of the Earn Out to Sellers, except as provided in Section 3(e)(iii) below. (iii) If (A) prior to June 30, 2008, Buyer sells the Company or all or substantially all of the Company’s assets to a third party (other than an Affiliate of Buyer) (a “Sales Event”), and (B) it is determined, after completion of the Statement of EBITDA, and after completion of the time and procedure described in Section 3(e)(iv) below if Representative disputes the Statement of EBITDA, that EBITDA for the Measurement Period (including the portion, if any, of the Measurement Period occurring prior to the Closing Date) through the Business Day immediately preceding the closing date of such Sales Event is equal to or greater than the applicable U.S. dollar amount set forth on Schedule 3(e)(iii) ((A) and (B) being, collectively, the “Post-Closing Earn Out Conditions Following a Sales Event”), then Buyer shall promptly pay the Earn Out to Sellers, subject to Buyer’s rights under Sections 2(b) and 15(f); provided, however, that if the Post-Closing Earn Out Conditions Following a Sales Event are not satisfied in full, then no Earn Out shall be due under this Section 3(e)(iii) and Buyer shall have no obligation under this Section 3(e)(iii) to pay all or any portion of the Earn Out to Sellers. (iv) Buyer will deliver to the Representative a quarterly statement of EBITDA for the Company prepared in accordance with GAAP within thirty (30) days after the end of each of Termination Date. Upon release from escrow, the first three fiscal quarters during the Measurement Period; providedShares will include piggyback registration rights, however, that the dispute resolution procedures set forth below will only apply subject to the Statement of EBITDA delivered pursuant to Section 3(e)(i) abovecustomary underwriters' cutbacks. The Representative shall have until thirty (30) days after the Upon receipt of the Statement Shares, Executive will acquire the Shares for his own account and not with a view to their distribution within the meaning of EBITDA to review such statement. If the Representative disputes Buyer’s Statement of EBITDA, he shall so notify Buyer on or prior to the expiration of such 30-day period. Buyer and the Representative shall then attempt in good faith to resolve their dispute regarding the Statement of EBITDA, but if a final resolution thereof is not obtained within ten (10Section 2(11) days after the Representative has notified Buyer that he disputes Buyer’s Statement of EBITDA, either Buyer or the Representative may retain for the benefit of all the parties hereto an independent accounting firm nationally recognized in the United States acceptable to both the Representative and Buyer (the “Independent Accountant”) to resolve any remaining disputes concerning the Statement of EBITDA. If the Independent Accountant is retained, then (i) the Representative and Buyer shall each submit to the Independent Accountant in writing not later than fifteen (15) days after the Independent Accountant is retained their respective positions with respect to the Statement of EBITDA and their respective calculation of EBITDA for the applicable Measurement Period, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (ii) the Independent Accountant shall, within thirty (30) days after receiving the positions of both the Representative and Buyer and all supplementary supporting documentation requested by the Independent Accountant, render its decision as to the Statement of EBITDA, which decision shall be final and binding on, and nonappealable by, the Representative and Buyer. The fees and expenses of the Independent Accountant shall be paid one-half by the Sellers and one-half by Buyer; providedSecurities Act of 1933, however, that if EBITDA for the applicable Measurement Period as finally determined by the Independent Account and set forth amended. Executive is an "accredited investor," as such term is defined in the Settlement Amount Certificate (defined belowRule 501(a) is closer to the EBITDA calculation submitted by the Representative than to the EBITDA calculation submitted by Buyer, then Buyer shall pay 100% of the fees and expenses of the Independent Accountant. The decision of the Independent Accountant shall take into consideration the respective positions and supporting documentation submitted by the Representative and Buyer promulgated pursuant to the preceding clause (i)Securities Act of 1933, but shall ultimately be derived solely from as amended. Executive acknowledges that Executive has had the Company’s financial statements used opportunity to produce Buyer’s financial statements filed with ask questions of and receive answers from, or obtain additional information from, the SEC for the fiscal period(s) covering the relevant Measurement Period. The decision of the Independent Accountant shall also include a certificate of the Independent Accountant setting forth the final EBITDA calculation for the applicable Measurement Period (the “Settlement Amount Certificate”). (v) For purposes of this Section 3(e), “EBITDA” shall mean the sum of net income executive officers of the Company for concerning the Measurement Period plus (financial and other affairs of the Company, and to the extent deducted deemed necessary in determining light of such personal knowledge of the Company’s net income) (i) interest expense for 's affairs, Executive has asked such period, (ii) income tax expense for questions and received answers to the full satisfaction of Executive. Executive understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness of suitability of the investment in the Shares nor have such period, and (iii) depreciation expense, amortization expense and other non-cash expenses for such periodauthorities passed upon or endorsed the merits of the offering of the Shares. Notwithstanding the foregoing, in each casethe event that the Milestones are not achieved in a given year, measured the Board of Directors of ACT shall have the right, in accordance with GAAPits sole and absolute discretion, to grant to Executive all or a portion of the Shares that could have been earned by Executive during such year.