Common use of Earn-Out Clause in Contracts

Earn-Out. (a) Subject to the terms and conditions set forth in this Section 3.4, the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (“Earn-Out Shares”) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000).

Earn-Out. (a) Subject to the following terms and conditions set forth in this Section 3.4conditions, Parent shall make the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (“Earn-Out Shares”) orfollowing payments, if elected by any, to the Buyer as described below, cash Exchange Agent (“Earn-Out Cash”for distribution to the Company Members in accordance with their respective Pro Rata Percentages) (as applicablecollectively, “Earn-Out Consideration”) with a value (the “Earn-Out ValuePayments”): (i) An amount of up to $25 million (the “Gross Profit Earn-Out”) based shall be payable as follows: (A) An amount up to $12.5 million in the aggregate (the “GP Earn-Out”) shall be payable as follows: if during the first 24 months starting on the Excess Net Royalties for each first day of the four month following the month in which the Closing occurs (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Gross Profit Earn-Out Period”) multiplied ), the Gross Profit generated by the Applicable Percentage(sNovitium Portfolio minus Required CapEx is greater than or equal to $95 million, Parent will pay an amount, not to exceed $12.5 million, calculated by multiplying $12.5 million by a fraction, (i) the numerator of which is the 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 which 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). The Excess Net Royalty ; provided, in the case of each of clauses (A) 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 Royalty Target Year 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 the positive amount, if any, payable as follows: Out of the Net Royalties as calculated for such Royalty Target YearProfit generated by the 505(b)(2) Products, less the greater Company Members shall receive 20%, payable on a quarterly basis until the earlier to occur of (i) One Million Five Hundred Dollars the sum of all such payments being equal to $21.5 million in the aggregate and ($1,500,000ii) the tenth anniversary of FDA Approval of the applicable 505(b)(2) Product. (b) In respect of the Gross Profit Earn-Out, within sixty (60) calendar days after the expiration of (i) each full twelve months period of the Gross Profit Earn-Out Period and (ii) 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). Within forty-five (45) calendar days of receipt of any of the foregoing statements, the Equityholders’ Representative shall have the right to dispute such calculations, and the provisions of 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 the R&D Expenses, (ii) in the case of Section 1.12(a)(i)(B), the making of the last outstanding FDA Filing and the related final determination of the R&D Expenses, and (iii) in 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. (c) Parent’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) Earn-Out shall not obligate Parent to make the respective other Earn-Out Payment or any portion thereof. (d) If a Key Person is terminated by Parent or its Subsidiaries without Cause (as defined in such Key Person’s Employment Agreement) or resigns from Parent or its Subsidiaries for Good Reason (as defined in such Key Person’s Employment Agreement), in each case, following the Closing but prior to the end of the Gross Profit Earn-Out Period, such Key Person’s pro rata portion (determined (i) if such Key Person is 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 is also) a direct or indirect holder of Equity Interests in a Principal Member, by multiplying (A) the Pro Rata Percentage of the Principal Member of which such Key Person owns Equity Interests by (B) a fraction, the 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 subclauses (i) and (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 maximum Net Royalties for achievement or maximization of any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out PeriodPayment; provided, however, that: (bi) 20% in respect of aggregate Excess Net Royalties during the 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 R&D Expenses and shall not, in connection therewith, take any action (or omit to take any action) the principal purpose of which is to frustrate the ability to achieve the ANDA Filing Earn-Out; provided, further, that, if Parent chooses to instruct the Company to expend more than $16 million per year of R&D Expenses, Parent shall not be relieved from its obligation to pay the ANDA Filing Earn-Out Period greater (if the conditions set forth in Section 1.12(a)(i)(B) are otherwise satisfied); and (ii) in respect of the GP Earn-Out, (A) Parent shall, and shall cause the Company to, use efforts and resources consistent with the past practice of Parent related to the development, 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 (B) if Parent chooses to instruct the Company to expend more than $10,000,000 and up 16 million per year of R&D Expenses, Parent shall not be relieved from its obligation to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during pay the GP Earn-Out Period (if the conditions set forth in excess Section 1.12(a)(i)(A) are otherwise satisfied); and (iii) in respect of $15,000,000the 505(b)(2) Earn-Out, 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 Consideration shall be payable in Earn-Out Shares (calculated in Payments and the manner described in provisions of Section 3.4(b)); provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable 1.12 relating to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval Payments are intended solely for the issuance benefit of the Company Members, and the right (if any) to receive distributions in connection with the Earn-Out Shares Payment shall be personal to those Persons. Notwithstanding the foregoing, a Company Member may transfer such rights (i) in excess 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 such Company Member’s assets and (ii) in the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) andcase of a Company Member that is a natural person, if such stockholder approval transfer is obtainedmade for bona fide estate planning purposes, issue either during his or her lifetime or on death by will or intestacy to such Earn-Out Shares to the Sellernatural person’s estate, spouse, children, ancestors or any descendants of any ancestors; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance provided, that each such transfer shall comply with Nasdaq Rule 5635(a)(2) applicable securities laws and, if assuming such stockholder approval transfer is obtainedpermitted by applicable securities laws, pay the applicable Earn-Out Consideration with a combination each such transferee shall make appropriate securities laws representations and warranties pursuant to an instrument of Earn-Out Cash assignment and Earn-Out Shares. Notwithstanding anything herein assumption reasonably satisfactory to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000)Parent.

Earn-Out. (a) Subject to the terms and conditions set forth in this Section 3.4, the Seller shall be eligible to receive from the Buyer, as As additional consideration for (the sale and purchase of the Acquired Assets, Xcel Shares (“Earn-Out Shares”) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) for the Equity Interests and Transferred Assets, Purchaser shall pay to Seller Parent (on behalf of Sellers) an amount, if any, equal to: (i) Three Million Dollars ($3,000,000.00) if the Combined Adjusted EBITDA Margin exceeds five percent (5%); and (ii) an additional Two Million Dollars ($2,000,000.00) if the Combined Adjusted EBITDA Margin exceeds seven percent (7%) (it being understood that the amounts set forth in the foregoing clauses (i) and (ii) are cumulative and not alternative), in each case in accordance with this Section 2.5. For the avoidance of doubt, in no event shall the Earn-Out Consideration payable to Sellers pursuant to this Section 2.5 exceed Five Million Dollars ($5,000,000.00) in the aggregate (the “Maximum Earn-Out Consideration Amount”). (b) Following the Closing, Purchaser shall, and shall cause its Affiliates (including the Transferred Entities) to, (i) maintain adequate financial records for, and allocate costs to, the Combined Business in accordance with Purchaser’s internal reporting policies and requirements and US GAAP; and (ii) not take or omit to take any actions with a value purpose or intention to avoid, reduce, or otherwise frustrate the payment of the Earn-Out Consideration. (c) With respect to each of Fiscal Year 2016 and Fiscal Year 2017, no later than 10 days after the filing of Purchaser’s annual report on Form 10-K with the SEC for such fiscal year or, if Purchaser is no longer required to file such report or if such report is not timely filed by Purchaser, no later than 75 days after the end of such fiscal year, Purchaser shall prepare (or cause to be prepared) and deliver to Seller Parent financial statements (the “Earn-Out ValueFinancial Statements”) based on the Excess Net Royalties for each prepared in accordance with US GAAP consistently applied and consisting of a balance sheet and statements of income, changes in stockholders equity and cash flows of the four (4) calendar years commencing with Combined Business as of the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”end of, and cumulatively for, such fiscal year, together with calculations of (i) in respect of the Earn-Out Financial Statements delivered for Fiscal Year 2016, the Combined Adjusted EBITDA and Combined Revenue for Fiscal Year 2016 and (ii) in respect of the Earn-Out Financial Statements delivered for Fiscal Year 2017, the Combined Adjusted EBITDA and Combined Revenue for Fiscal Year 2017 and the resulting calculation of the Combined Adjusted EBITDA Margin. Following delivery of any Earn-Out Financial Statements to Seller Parent, Purchaser agrees to provide Seller Parent and its accountants and representatives access to the books and records of the Combined Business to the extent reasonably requested by Seller Parent in connection with its review of the Earn-Out Financial Statements and will cause appropriate personnel of Purchaser and the Combined Business to provide reasonable assistance to Seller Parent and its representatives for the purpose of reviewing the Earn-Out Financial Statements. Purchaser shall, at no cost to Purchaser, permit Seller Parent’s accountants to review and make copies of all work papers used to support account balances in the Earn-Out Financial Statements. (d) In the event that Seller Parent disputes any of the Earn-Out Financial Statements delivered pursuant to Section 2.5(c), Seller Parent shall deliver a notice (an “Earn-Out PeriodDispute Notice”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, to such effect no later than forty-five (45) Business Days after delivery of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, Financial Statements for Fiscal Year 2017 (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration it being understood that Seller Parent shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect entitled to (x) pay Earn-Out Cash for the Earn-Out Value attributable object to the Earn-Out Shares that would exceed Financial Statements for Fiscal Year 2016 and discuss the Xcel Share Limit; same with Purchaser prior to such date without prejudice to its rights hereunder), and any such dispute shall be resolved under the procedures set forth in clauses (yi), (ii), (iii) solicit stockholder approval for and (v) of Section 2.2(d) of this Agreement (with the issuance provisions of such Section relating to disputed items set forth in a Notice of Disagreement applying mutatis mutandis to disputed items set forth in an Earn-Out Shares in excess Dispute Notice, except that references to Specified Accounting Principles shall be deemed to refer to US GAAP consistently applied). (e) If Seller Parent is entitled to payment of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such any Earn-Out Shares Consideration pursuant to the Seller; or this Section 2.5, Purchaser shall pay to Seller Parent (zon behalf of all Sellers) solicit stockholder approval for the issuance of Earn-Out Shares an amount in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay cash equal to the applicable Earn-Out Consideration with a combination (i) within five (5) Business Days after expiration of the forty-five (45) Business Day period after delivery of the Earn-Out Cash and Financial Statements for Fiscal Year 2017 if Seller Parent does not deliver an Earn-Out Shares. Notwithstanding anything herein Dispute Notice within such forty-five (45) Business Day period or (ii) within five (5) Business Days of the final resolution of all disputed items set forth in an Earn-Out Dispute Notice delivered pursuant to Section 2.5(d), in each case by wire transfer of immediately available funds to an account or accounts designated in writing by Seller Parent. (f) If an Earn-Out Acceleration Event occurs following the Closing Date, Purchaser shall pay, or cause to be paid, to Seller Parent (on behalf of all Sellers) by wire transfer of immediately available funds to an account or accounts designated in writing by Seller Parent, an amount in cash equal to the contrary, the total cumulative Maximum Earn-Out Consideration over Amount no later than five (5) Business Days following the entire occurrence of the applicable Earn-Out Period Acceleration Event. Purchaser shall, and shall not exceed Six Million Dollars ($6,000,000)cause its Affiliates to, promptly notify Seller Parent in writing promptly following the entry into an agreement or other understanding in respect of an Earn-Out Acceleration Event.

Earn-Out. (a) Subject If prior to the terms and conditions set forth in this Section 3.4Closing Date, (i) the Seller shall be eligible Company has elected to receive from protest the Buyer, as additional consideration for the sale and purchase March 2004 loss of the Acquired AssetsDefense Advanced Research Projects Agency (“DARPA”) Contract – solicitation number N00174-03-R-0044 (the “DARPA Contract”) through litigation or other administrative procedure (the “Protest”), Xcel Shares (ii) such Protest has not been finally and non-appealably resolved as of the Closing Date and (iii) as a result of such Protest the Company, or any of its successors or Affiliates, is, on or before the final and non-appealable resolution of the Protest (“Earn-Out SharesEnd Date”) or), if elected awarded a contract by DARPA (the Buyer as described below, cash (“Earn-Out CashContract”) 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 Purchaser shall have an obligation (the “Earn-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 applicablethe “Maximum Earn-Out Consideration”). In the event that the actual estimated total gross revenue during the term of the Earn-Out Contract (the “Actual Earn-Out Contract Requirements”) is for a greater amount of estimated total gross revenue during the term of the Earn-Out Contract than the Target Earn-Out Contract Requirements, Purchaser shall have an 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 (the “Actual Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). determined as follows: The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Maximum Earn-Out Consideration shall be payable in multiplied by a fraction, the numerator of which shall be the Actual Earn-Out Shares (calculated in Contract Requirements and the manner described in Section 3.4(b)); provided, however, that if denominator shall be the number of Target Earn-Out SharesContract Requirements, when combined with but in no event shall the number of Closing Shares issued at Actual Earn-Out Consideration be greater than the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement Maximum Earn-Out Consideration. The Actual Earn-Out Consideration shall be paid (calculated i) twenty five percent (25%) in accordance with Nasdaq Rule 5635(a)) cash (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Actual Earn-Out Cash for Payment”) and (ii) seventy five percent (75%) in shares of Purchaser Common Stock, with such value being determined in accordance with the Earn-Out Value attributable to Valuation (the “Actual Earn-Out Shares 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 would exceed Purchaser or the Xcel Share Limit; (y) solicit stockholder approval for Company or any of their successors or Affiliates are awarded any contract by DARPA unrelated to the issuance of Protest, Purchaser shall have no Earn-Out Shares in excess of Obligation to the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such Sellers. Any dispute between Purchaser and the Sellers regarding whether Purchaser shall or shall not have an Earn-Out Shares Obligation to the Seller; or Sellers shall be resolved by the Independent Accounting Firm in a similar manner as set forth in Section 2.3(b) above. (zb) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, Purchaser shall pay the applicable Actual Earn-Out Consideration with a combination or the Maximum Earn-Out Consideration, as the case may be, as follows: (A) the pro rata share of the Actual Earn-Out Cash and Payment or the Maximum Earn-Out Shares. Notwithstanding anything herein Cash Payment, as the case may be, applicable to each Seller (as set forth on Schedule 2.2) shall be paid by wire transfer of immediately available funds to each Seller to an account designated by him; and (B) stock certificates representing the contrary, pro rata share applicable to each Seller of an aggregate of the total cumulative Actual Earn-Out Consideration over Purchaser Common Shares or the entire Maximum Earn-Out Period Purchaser Common Shares, as the case may be, shall not exceed Six Million Dollars ($6,000,000)be issued and delivered to each Seller in accordance with Schedule 2.2.

Earn-Out. (a) Subject As additional consideration for the Shares being sold by the Sellers and purchased by Buyer hereunder, Buyer shall pay to the terms and conditions Sellers the amounts set forth in this Section 3.41.7: (i) an amount equal to the amount, if any, by which the consolidated EBITDA of the Company and its current Subsidiaries for the fiscal year ending December 31, 2013 (“2013 EBITDA”) exceeds $11,000,000 (such excess, if any, the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (“2013 Earn-Out SharesPayment”); and (ii) an amount equal to the amount, if any, by which the consolidated EBITDA of the Company and its current Subsidiaries for the fiscal year ending December 31, 2014 (“2014 EBITDA”) orexceeds $12,000,000 (such excess, if elected by any, the Buyer as described below, cash (“2014 Earn-Out Cash”) (as applicable, “Payment,” and together with the 2013 Earn-Out Consideration”) with a value (Payment, the “Earn-Out ValuePayments”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number maximum aggregate amount of Earn-Out SharesPayments payable under this Section 1.7 shall be $5,000,000. (b) The following sets forth the procedures for determining the 2013 EBITDA and 2014 EBITDA (and the corresponding Earn-Out Payments, when combined if any) and for resolving disputes among the parties with respect to the determination of the 2013 EBITDA and 2014 EBITDA (and the corresponding 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, 2013 and 2014), Buyer shall (A) cause to be prepared and delivered to the Sellers' Representative a written statement that sets forth in reasonable detail Buyer's calculation of the 2013 EBITDA or 2014 EBITDA, as applicable (“Buyer's EBITDA Report”), and (B) pay to the Sellers (in accordance with each Seller's Proportionate Share) an amount equal to the 2013 Earn-Out Payment or ▇▇▇▇ ▇▇▇▇-▇▇▇ Payment, as applicable, based on the calculation of 2013 EBITDA or 2014 EBITDA, 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 immediately available funds to the account or accounts designated by the Sellers' Representative. (ii) Within thirty (30) days after delivery to the Sellers' Representative of Buyer's EBITDA Report, the Sellers' Representative may deliver to Buyer a written report ("Sellers' EBITDA Report") advising Buyer either that the Sellers (A) agree with the number of Closing Shares issued at the Closing, will exceed 4.99% calculation of the aggregate number 2013 EBITDA or 2014 EBITDA, as applicable, reflected in Buyer's EBITDA Report or (B) deem that one or more adjustments are required. If Buyer shall concur with the adjustments proposed in Sellers' EBITDA Report, or if Buyer shall not object thereto in a writing delivered to the Sellers' Representative within thirty (30) days after Buyer's receipt of Xcel Shares outstanding Sellers' EBITDA Report, the calculation 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-day period provided herein, then the calculation of the 2013 EBITDA or 2014 EBITDA, as applicable, reflected in Buyer's EBITDA Report shall become final and shall not be subject to further review, challenge or adjustment absent fraud. (iii) In the event that the Sellers' Representative submits a Sellers' EBITDA Report pursuant to Section 1.7(b)(ii)(B) and Buyer objects by written notice as set forth in Section 1.7(b)(ii), Buyer and the Sellers' Representative shall confer in good faith to attempt to resolve any disagreements between Buyer's EBITDA Report and Sellers' EBITDA Report. If Buyer and the Sellers' Representative are unable to resolve such disagreements within thirty (30) days after the date of this Agreement Buyer's written objection to Sellers' EBITDA Report, then such disagreements shall be referred to the Settlement Accountants, and the determinations of the Settlement Accountants with respect to the calculation of the 2013 EBITDA or 2014 EBITDA, as applicable, shall be final and shall not be subject to further review, challenge or adjustment absent fraud. The Settlement Accountants shall use their best efforts to reach a determination not more than forty-five (calculated in accordance with Nasdaq Rule 5635(a)45) (days after such referral. The 2013 Earn-Out Payment or ▇▇▇▇ ▇▇▇▇-▇▇▇ Payment, as applicable, based on the final and binding calculation of the 2013 EBITDA or 2014 EBITDA, as applicable, shall be referred to herein as the “Xcel Share LimitFinal 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 the services of the Settlement Accountants shall be allocated between Buyer and the Sellers by the Settlement Accountants such that Buyer (on the one hand) and the Sellers (on the other hand) shall bear a fraction of such expenses equal to (i) the absolute difference between (A) the final calculation of the 2013 EBITDA or 2014 EBITDA, as applicable, resulting from the determination of the Settlement Accountants and (B) the calculation of the 2013 EBITDA or 2014 EBITDA, as applicable, reflected in the Buyer's EBITDA Report or Sellers' EBITDA Report, as applicable, divided by (ii) the absolute difference between (A) the calculation of the 2013 EBITDA or 2014 EBITDA, as applicable, reflected in the Buyer's EBITDA Report and (B) the calculation of the 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 may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2each Seller's Proportionate Share) and, if such stockholder approval is obtained, issue an amount equal to the amount of such Earn-Out Shares to Shortfall. If the Seller; or (z) solicit stockholder approval for the issuance of Final Earn-Out Shares Amount is greater than the Preliminary Earn-Out Payment (such amount, the “Earn-Out Excess”), then Buyer shall pay 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 date the applicable Final Earn-Out Amount is final and binding upon the parties (the “Earn-Out Adjustment Payment Date”). (d) For purposes hereof, “EBITDA” shall means the 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 year ended December 31, 2012 included in the Company Financial Statements, plus, to the extent deducted in calculating such net income, (i) all charges for or with respect to interest, taxes, depreciation and amortization, (ii) 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, (iv) all other intercompany charges between the Xcel Share Limit Buyer (or its Affiliates) and the Company (or any of its current Subsidiaries) which have not been approved by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (other than charges for transportation services at the lower of cost and market rates and other than charges described in accordance clause (iii) above), and (v) any reserves or adjustments to reserves which are not consistent with Nasdaq Rule 5635(a)(2) andGAAP applied on a basis consistent with the accounting policies, if such stockholder approval is obtainedpractices and procedures used to prepare the Company's consolidated Financial Statements as of and for the year ended December 31, pay 2012 included in the applicable Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000)Company Financial Statements.

Earn-Out. (a) Subject In addition to the Purchase Price, Seller shall have the opportunity to earn, and Purchaser shall pay, subject to the terms and conditions of this Section 1.3, additional cash proceeds, which will be an upward adjustment to the Purchase Price, in an aggregate amount not to exceed twenty-five million dollars ($25,000,000), calculated and determined in the manner set forth in this Section 3.41.3. (b) Purchaser shall pay Seller an annual earn-out payment (the “Annual Earn-Out Payment”) (if any) for each of the first five (5) calendar years from January 1, 2017 (each an “Earn Out Year”), with the calendar year ending December 31, 2017, referred to as “Year One,” the calendar year ending December 31, 2018, referred to as “Year Two,” the calendar year ending December 31, 2019, referred to as “Year Three,” the calendar year ending December 31, 2020, referred to as “Year Four” and the calendar year ending December 31, 2021, referred to as “Year Five,” to be calculated as set forth on Schedule 1.3(b). (c) Within sixty (60) days after the end of an applicable Earn-Out Year, Purchaser shall (i) prepare or cause to be prepared a statement setting forth: (A) following Year One, the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase calculation of the Acquired AssetsAnnual Earn-Out Payment applicable to Year One; (B) following Year Two, Xcel Shares the calculation of the Annual Earn-Out Payment applicable to Year Two; (C) following Year Three, the calculation of the Annual Earn-Out Payment applicable to Year Three; (D) following Year Four, the calculation of the Annual Earn-Out Payment applicable to Year Four and (E) following Year Five, the calculation of the Annual Earn-Out Payment applicable to Year Five (with respect to each Earn-Out Year, an “Earn-Out SharesCalculation”) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay deliver the applicable Earn-Out Consideration Calculation to Seller, together with a combination (A) reasonable supporting documents and (B) payment to Seller, by wire transfer of immediately available funds to an account designated in writing by Seller, of the Annual Earn-Out Cash and Payment, if any, calculated by Purchaser to be payable based on such Earn-Out SharesCalculation. Notwithstanding anything herein to Seller shall have a period of thirty (30) days after receipt of the contrary, the total cumulative applicable Earn-Out Consideration over Calculation with respect to the entire applicable Earn-Out Period Year to notify Purchaser in writing of Seller’s election to accept or reject such Earn-Out Calculation as prepared by Purchaser. In the event Seller rejects in writing such Earn-Out Calculation as prepared by Purchaser, such rejection notice (the “Rejection Notice”) shall contain the reasons for such rejection in reasonable detail and set forth the amount of the requested adjustment. In the event no Rejection Notice is received by Purchaser during such thirty (30)-day period, the Annual Earn-Out Payment for such Earn-Out Year (as set forth in Purchaser’s Earn-Out Calculation) shall be deemed to have been accepted and shall be final, conclusive and binding on the Parties hereto. In the event that Seller shall timely reject an Earn-Out Calculation, Purchaser and Seller shall promptly (and in any event within thirty (30) days following the date upon which Purchaser received the applicable Rejection Notice from Seller rejecting such Earn-Out Calculation) attempt in good faith to make a joint determination of the Annual Earn-Out Payment for the applicable Earn-Out Year, and such determination and any required adjustments resulting therefrom shall be final, conclusive and binding on the Parties hereto. In the event Seller and Purchaser are unable to agree upon the Annual Earn-Out Payment for the applicable Earn-Out Year within such thirty (30)-day period, then Purchaser and Seller shall jointly engage the Accounting Firm to resolve such dispute and promptly submit such dispute for resolution to the Accounting Firm. The Parties shall jointly instruct the Accounting Firm to make a determination within thirty (30) days after its engagement or as soon as practicable thereafter. The Accounting Firm’s determination shall be limited to resolving the disagreement set forth in the Rejection Notice. The determination of the Accounting Firm and any required adjustments resulting therefrom shall be final, conclusive and binding on all the Parties hereto. The fees and expenses of the Accounting Firm shall be allocated between and paid by Purchaser and/or Seller, respectively, based upon the percentage that the portion of the contested amount not exceed Six Million Dollars awarded to each Party bears to the amount actually contested by such Party, as determined by the Accounting Firm. ($6,000,000d) If the Annual Earn-Out Payment due on account of any Earn-Out Year, as finally determined pursuant to Section 1.3(c), is greater than the amount (if any) initially paid by Purchaser on account of such Earn-Out Year, then the additional Annual Earn-Out Payment due shall be payable within five (5) days of such final determination pursuant to Section 1.3(c), and Purchaser shall deliver to Seller such additional amount by wire transfer of immediately available funds to the account designated in writing by Seller to Purchaser. (e) For the purposes of complying with the terms set forth in this Section 1.3, Purchaser shall cooperate with and make available to Seller all pertinent books, records and data, and shall permit reasonable access to its facilities and personnel upon reasonable advance written notice and during normal business hours, as may be reasonably required in connection with the preparation and analysis of the Earn-Out Calculation for any Earn-Out Year and the resolution of any disputes thereunder as set forth on Schedule 1.3(e). In addition, Purchaser shall also provide such access upon request by Seller and cooperate with Seller in connection with making interim calculations of amounts due pursuant to this Section 1.3. If Purchaser breaches its obligations under this Section 1.3(e), the dispute period set forth in Section 1.3 shall be automatically extended until such breach is cured by Purchaser. (f) From and after the Closing Date and through and including the expiration of Year Five, unless otherwise agreed to in writing by Seller, Purchaser shall, and shall cause any Affiliate of Purchaser to: (i) not sell, transfer or otherwise dispose of any asset that is necessary or required in connection with the production or sale of renewable natural gas or related RINS or LCFS Credits; (ii) use commercially reasonable efforts to maximize the sale of renewable natural gas and the related RINS or LCFS Credits pursuant to applicable supply agreements and to seek an extension of any RIN Contract or LCFS Contracts; (iii) cause the books and records of the Business set forth on Schedule 1.3

Earn-Out. (a) Subject In addition to the Closing Purchase Price, JAKKS Pacific shall pay the Earn-Out to the Agent in the form of Common Stock for the benefit and account of the several Shareholders in the amount and payable in the manner and upon the terms and conditions set forth below: (a) The Earn-Out for each Earn-Out Year shall be determined by the increase, if any, in this Section 3.4Kidz Biz Sales for such Earn-Out Year over the prior year's Kidz Biz Sales, expressed as a percentage of the prior year's Kidz Biz Sales (the "Percentage Y/O/Y Increase"), and shall be earned and payable as follows: (i) if the Percentage Y/O/Y Increase is less than or equal to five (5%) percent, there will be no Earn-out Payment for the Earn-Out Year; (ii) if the Percentage Y/O/Y Increase is greater than five (5%) percent but less than or equal to ten (10%) percent, the Seller shall be eligible Earn-out Payment for such Earn-Out Year will equal the number of shares of Common Stock equal to receive from the Buyer, as additional consideration for product of (i) a fraction the sale numerator of which is five (5%) percent and purchase the denominator of which is the excess of the Acquired AssetsPercentage Y/O/Y Increase over five (5%) percent and (ii) 25,749 shares of Common Stock; and (iii) if the Percentage Y/O/Y Increase is greater than ten (10%) percent, Xcel Shares the Earn-out Payment for such Earn-Out Year will be 25,749 shares of Common Stock. (“b) The Earn-Out Shares”) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, for each Earn-Out Year shall be delivered as soon as practicable, but in any event not later than sixty (60) days, after the end of such Earn-Out Year. (c) On each Earn-Out Payment Date, JAKKS Pacific shall pay the Earn-Out, if any, for the applicable Earn-Out Year to the Agent (for the benefit and account of the Net Royalties as calculated several Shareholders) in the manner provided in a Notice given to JAKKS Pacific pursuant to Section 3.2 or, if no such Notice is given, by delivering share certificates for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out PeriodShares in the names of each Shareholder to the Agent, (b) 20% each certificate to be for the same proportion of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% Shares for that Earn-Out Year as the proportion of aggregate Excess Net Royalties during Earn-Out Shares received by such Shareholder in payment of the last preceding Earn-Out Payment, or if no preceding Earn-Out Payment has then been made, for the same proportion of the Earn-Out Period Shares as the proportion of the JAKKS Pacific Shares received by such Shareholder on Closing. (d) In the event that JAKKS Pacific ceases to control Kidz Biz UK or Far East and ▇▇▇▇▇ ▇▇▇▇▇▇'▇ employment is terminated without "cause" by Kidz Biz UK or by ▇▇▇▇▇ ▇▇▇▇▇▇ for "good reason" (as such terms are used in excess the Employment Agreement) prior to the end of $15,000,000. The the term of the Employment Agreement, JAKKS Pacific shall within ten (10)business days thereafter deliver to the Agent for the benefit and account of the Shareholders 25,749 shares of Common Stock in respect of the then current Earn-Out Consideration shall be payable Year in which such events occur in full satisfaction of the Earn-Out Shares obligation for such Earn-Out Year, and 25,749 shares of Common Stock in respect of each Earn-Out Year thereafter, such delivery to occur within thirty (calculated in 30) days after the manner described in Section 3.4(b)); end of the relevant subsequent Earn-Out Year, if any, provided, however, that if such termination occurs after the third anniversary of the Closing under this Agreement, the number of Earn-Out Shares, when combined with the number shares of Closing Shares issued at the Closing, will exceed 4.99% Common Stock thereafter deliverable on account of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to shall equal the average number of shares of Common Stock delivered in satisfaction of the Earn-Out Shares that would exceed obligation, if any, during the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if Years ending prior to such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000)termination.

Earn-Out. (a) Subject The definitive asset purchase agreement relating to the terms and conditions set forth in this Section 3.4, the Acquisition will contain an earn-out agreement pursuant to which Seller shall will be eligible entitled to receive from the Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (“Earn-Out Shares”) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value payments (the “Earn-Out ValuePayments”) based upon the following structure: (a) Seller shall be entitled to an amount equal to four percent (4%) of the Buyer’s license fee revenue (as determined in accordance with GAAP) received from the combined Global Software, Inc./Timeline, Inc. analytics business (the “Combined Analytics Business Revenue”) for the period beginning on the Excess Net Royalties for each date of Closing and ending on the first anniversary of the four date of Closing (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “First Earn-Out Period”); (b) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year Seller shall be the positive amount, if any, entitled to an amount equal to three percent (3%) of the Net Royalties as calculated Combined Analytics Business Revenue for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) period beginning on the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% first anniversary of the first $10,000,000 date of Excess Net Royalties during Closing and ending on the second anniversary of the date of Closing (the “Second Earn-Out Period, ”); (bc) 20% Seller shall be entitled to an amount equal to two percent (2%) of aggregate Excess Net Royalties during the Combined Analytics Business Revenue for the period beginning on the second anniversary of the date of Closing and ending on the third anniversary of the date of Closing (the “Third Earn-Out Period greater than $10,000,000 and up to $15,000,000 Period”); and (cd) 0% Seller shall be entitled to an amount equal to one percent (1%) of aggregate Excess Net Royalties during the Combined Analytics Business Revenue for the period beginning on the third anniversary of the date of Closing and ending on the fourth anniversary of the date of Closing (the “Fourth Earn-Out Period in excess of $15,000,000Period”). The Buyer and the Seller agree that the estimate of the aggregate Earn-Out Consideration Payments is approximately $470,000, which estimate is based on the following Combined Analytics Business Revenue targets: (w) $3,700,000 for the First Earn-Out Period; (x) $4,700,000 for the Second Earn-Out Period; (y) $6,200,000 for the Third Earn-Out Period; and (z) $7,000,000 for the Fourth Earn-Out Period. Any and all Earn-Out Payments shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued arrears at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000)quarterly intervals.

Earn-Out. (a) Subject In addition to the terms Consideration Shares, by virtue of the Merger, each share of Target Common Stock shall be converted into the right to receive, if and conditions set forth in when earned, any one or more earn-out payments (collectively, the “Earn-Out”) pursuant to this Section 3.42.6. With respect to each $5,000,000 of Net Revenue on a cumulative basis of all Target Products collectively (each, the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (an “Earn-Out SharesMilestone”) or), if elected by the Buyer as described belowEarn-Out amount shall be $500,000 (each, cash (an “Earn-Out CashPayment”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number of aggregate Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will payable hereunder shall under no circumstances exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) $2,500,000 (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for Target”). For example, when Net Revenue of the Target Products on an aggregate basis reaches $5,000,000, the first cash payment of $500,000 will be made, and when the Net Revenue of Target Products on an aggregate basis (including the first $5,000,000) reaches $10,000,000, the second milestone payment of $500,000 will be made. (b) From and after the first sale of Target Product and until the Earn-Out Value attributable Target has been paid in full, within forty five (45) days after the end of each calendar quarter from January through September, and within ninety (90) days after the fiscal year end for the fourth quarter ending in December (each, “Reporting Date”), the Acquiror shall deliver to the Stockholder Representative a written statement, certified by the Acquiror’s Chief Financial Officer, of the Net Revenue of all Target Products during such calendar quarter. Each time an Earn-Out Milestone has been achieved, within thirty (30) days after the first Reporting Date to occur after the Earn Out Milestone has been achieved, the Acquiror shall deliver and pay to the Stockholder Representative the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue Payment corresponding to such Earn-Out Shares to Milestone. The Stockholder Representative shall distribute the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess Payment to the Target Stockholders on a pro rata basis based on the Pre-Closing Ownership Percentages of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval Target Stockholders. Acquiror and its Affiliates shall not sell or transfer the Target Product unless the purchaser or transferee is obtained, pay subject to the applicable same obligation to make the Earn-Out Consideration with a combination Payments to the Target Stockholders as Acquiror and its Affiliates pursuant to this Agreement. (c) From and after the first sale of Target Product and until the Earn-Out Cash Target has been paid in full, Acquiror shall make its books available to the Stockholder Representative and its agents for review, at the Stockholder Representative’s sole cost, upon advance notice, during business hours, provided that such parties may not collectively request more than one review in each calendar year. If any such review shows that the Earn-Out Shares. Notwithstanding anything herein paid by Acquiror as of the time of such audit is deficient, Acquiror shall promptly pay the deficient amount plus interest on the deficient amount, from the date such payment was due to the contrarydate of actual payment at a rate of one percent (1%) per month, or if lower, the total cumulative maximum amount permitted under applicable Law. If the Earn-Out Consideration over payments made by Acquiror are found to be deficient by more than five percent (5%), Acquiror shall pay for all costs and expenses of Stockholder Representative associated with the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000)audit.

Earn-Out. (a) Subject Buyer shall pay to the terms and conditions set forth in this Section 3.4, the Seller shall be eligible to receive from the Buyer, as Shareholders additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (“Earn-Out Shares”) or, if elected by the Buyer in cash as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value herein (the “Earn-Out,” with the payment made pursuant to the Earn-Out Valuebeing the “Earn-Out Payment”), in accordance with the following: (i) based on The Shareholders shall receive an Earn-Out Payment from Buyer in an amount of fifty percent (50%) of the Excess Net Royalties for EBITDA of the Company during each of (1) the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 October 1, 2014 and ending December 31 a on September 30, 2015 (the “Royalty Target First Earn-Out Year”) and (2) the period commencing on October 1, 2015 and cumulatively ending on September 30, 2016 (the “Second Earn-Out Year” and together with the First Earn-Out Year, the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or . (ii) Notwithstanding anything in this Agreement to the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of contrary, in no event shall the first $10,000,000 of Excess Net Royalties during the aggregate Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during Payment for the Earn-Out Period greater be less than Five Million Dollars ($10,000,000 and up 5,000,000) (the “Minimum Earn-Out Amount”). If the amount of the Final First Earn-Out Year Payment (as defined 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 $15,000,000 and (c) 0% the Shareholders by wire transfer of immediately available funds on October 1, 2016. If the aggregate Excess Net Royalties during amount of the Earn-Out Payment for the Earn-Out Period in excess of $15,000,000. The as finally determined hereunder is greater than the Minimum Earn-Out Consideration Amount, then such difference, less any amounts withheld in connection with any Unresolved Claims, shall be payable paid to the Shareholders in accordance with the terms of this Section 2.2(d). (iii) For each of the First Earn-Out Shares (calculated in Year and the manner described in Section 3.4(b)); provided, however, that if the number of Second Earn-Out SharesYear, when combined with the number Buyer shall prepare and complete a calculation of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval Payment for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Year based on the EBITDA for the Company during such Earn-Out Cash and Year calculated in accordance with GAAP, applied on a consistent basis with the Company’s past practices as of the Closing Date. Buyer shall deliver the calculation of the Earn-Out SharesPayment for the applicable Earn-Out Year, along with reasonable supporting documentation, to the Shareholders within forty-five (45) days after the end of the applicable Earn-Out Year. During the period following delivery by the Buyer of the 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 (2) Business Days’ advanced notice to Buyer, shall have reasonable access to the books and records (including financial statements) of the Business, to the extent necessary, to the Facilities and employees of the Business and to Buyer’s accountant’s work papers during regular business hours to review the computation of EBITDA for the 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 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 of receipt of notice of the Shareholders’ disagreement, then such dispute shall be resolved in a manner consistent with the procedures set forth in Section 2.4(f). If the Shareholders fail to provide written notice of a disagreement with Buyer’s calculation of any such Earn-Out Payment to Buyer 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 forty-five (45) day period, then Buyer shall make such Earn-Out Payment, less any portion of the Earn-Out Payment previously paid and less any amounts withheld in connection with any Unresolved Claims, within fifteen (15) days after the earlier of Buyer’s receipt of notice from the Shareholders that the Shareholders have no dispute with respect to the calculation of such Earn-Out Payment or the expiration 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 herein to the contrary, contrary contained in this Section 2.2(d): (1) if Buyer and Shareholders disagree as to the total cumulative amount of the portion of the Earn-Out Consideration over Payment payable with respect to the entire First Earn-Out Period Year (the “First Earn-Out Year Payment”), Buyer shall not exceed Six Million Dollars pay Shareholders the uncontested portion of such First Earn-Out Year Payment as calculated by Buyer ($6,000,000the “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 First Earn-Out Year Payment as 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 amount 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 uncontested amount of the Second Earn-Out Year Payment as calculated by Buyer, (such greater amount of (i) or (ii) above, the “Second Year Uncontested Amount”), less any amounts paid pursuant to the second sentence of Section 2.2(d)(ii) and 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). Upon final determination of the Second Earn-Out Year Payment pursuant to this Section 2.2(d), Buyer shall pay to the Shareholders, an amount equal to such Earn-Out Payment as finally determined hereunder (the “Final Second Earn-Out Year Payment”) minus the Second 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 the Final Second Earn-Out Year Payment.

Earn-Out. (a) Subject In addition to the terms Purchase Price, and conditions set forth in this Section 3.4subject to a right of offset for the amount of any chargeback issued by a Licensee for the periods prior to Closing, the Buyer shall pay to Seller an aggregate earn-out of up to Nine Hundred Thousand Dollars ($900,000) which earn-out shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase payable upon achievement of the Acquired Assets, Xcel Shares following thresholds: (“Earn-Out Shares”i) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of If Gross Revenues attributable to the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 September 1, 2012 and ending December 31 a “Royalty Target Year”31, and cumulatively 2012 (the “First Earn-Out Period”) multiplied by are equal to or greater than Eight Hundred and Fifty Thousand Dollars ($850,000), then as additional consideration for the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year Purchased Assets purchased from Seller, Buyer shall make, or cause to be made, a cash payment of Four Hundred Thousand Dollars ($400,000) (the positive amount, if any, of “First Earn-Out Payment”) to Seller within the Net Royalties as calculated for such Royalty Target Year, less the greater earlier of (i) One Million Five Hundred Dollars two ($1,500,000), 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 First Earn-Out Payment has been reached or (ii) March 31, 2013 (in which event the maximum Net Royalties for First Earn-Out Payment shall be deemed due). For clarification, if Gross Revenues attributable to the First Earn-Out Period do not equal or exceed Eight Hundred and Fifty Thousand Dollars ($850,000), Buyer shall have no obligation to make any previous Royalty Target Year. earn-out payment to Seller pursuant to this Section 2.3(d)(i). (ii) In addition to the payment due pursuant to subsection (i) above, if Gross Revenues attributable to the twelve (12) month period commencing January 1, 2013 and ending December 31, 2013 (the “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Second Earn-Out Period” and collectively with the 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 (b$2,750,000), then as additional consideration for the Purchased Assets purchased from Seller, Buyer shall make, or cause to be made, a cash payment of Five Hundred Thousand Dollars ($500,000) 20% (the “Second Earn-Out Payment”, and collectively with the First Earn-Out Payment, the “Earn-Out Payments”) to Seller within the earlier of aggregate Excess Net Royalties (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 greater than $10,000,000 do not equal or exceed Two Million Seven Hundred and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Fifty Thousand Dollars ($6,000,0002,750,000), Buyer shall have no obligation to make any earn-out payment to Seller pursuant to this Section 2.3(d)(ii) (iii) As used herein, “Gross Revenue” shall mean all amounts due to Buyer from Licensees in the United States and Canada with respect to the managing, marketing, advertising and licensing of the Purchased Assets, including but not limited to, GMR payments and royalty payments based on net sales (calculated prior to any reduction for design fees/chargebacks or other such items) as defined in each underlying License Agreement, and with respect to royalty payments based on net sales, such royalties shall be deemed due on the date each such sale is made (notwithstanding when actual payment is due and/or paid by each such Licensee).

Earn-Out. (a) Subject The Standard Per Share Earn-Out Consideration will be composed as follows: (i) one-third of the shares of Acquiror Common Stock constituting the Standard Per Share Earn-Out Consideration shall be subject to the terms vesting and forfeiture conditions set forth specified in this Section 3.4, 4.7(b)(i) (the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (“First Target Earn-Out Shares”), (ii) or, if elected by an additional one-third of the Buyer as described below, cash (“shares of Acquiror Common Stock constituting the Standard Per Share Earn-Out Cash”Consideration shall be subject to the vesting and forfeiture conditions specified in Section 4.7(b)(ii) (as applicable, the “Second Target Earn-Out ConsiderationShares”), and (iii) with a value an additional one-third of the shares of Acquiror Common Stock constituting the Standard Per Share Earn-Out Consideration shall be subject to the vesting and forfeiture conditions specified in Section 4.7(b)(iii) (the “Third Target Earn-Out ValueShares”). (b) based The Standard Per Share Earn-Out Consideration shall be subject to the following vesting conditions during the five-year period beginning on the Excess Net Royalties for each date that is 90 days after the Closing and ending on the fifth anniversary of the four Closing Date (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”period, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of ): (i) One Million Five Hundred Dollars ($1,500,000)If, or (ii) the maximum Net Royalties for at any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties time during the Earn-Out Period, the VWAP per share of Acquiror Common Stock at any point during the trading hours of a Trading Day is greater than or equal to $12.00 for any 20 Trading Days within any period of 30 consecutive Trading Days (bthe date when the foregoing is first satisfied, the “First Earnout Achievement Date”), the First Target Earn-Out Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in this Section 4.7 on the First Earnout Achievement Date. (ii) 20% of aggregate Excess Net Royalties If, at any time during the Earn-Out Period Period, the VWAP per share of Acquiror Common Stock at any point during the trading hours of a Trading Day is greater than $10,000,000 and up or equal to $15,000,000 14.00 for any 20 Trading Days within any period of 30 consecutive Trading Days (the date when the foregoing is first satisfied, the “Second Earnout Achievement Date”), the Second Target Earn-Out Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in this Section 4.7 on the Second Earnout Achievement Date. (ciii) 0% of aggregate Excess Net Royalties If, at any time during the Earn-Out Period in excess Period, the VWAP per share of Acquiror Common Stock at any point during the trading hours of a Trading Day is greater than or equal to $15,000,000. The Earn-Out Consideration shall be payable in 16.00 for any 20 Trading Days within any period of 30 consecutive Trading Days (the date when the foregoing is first satisfied, the “Third Earnout Achievement Date”), the Third Target Earn-Out Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in this Section 4.7 on the Third Earnout Achievement Date. (calculated c) If the Second Earn-Out Achievement Date occurs at a time when the First Earn-Out Shares have not vested, then the First Earn-Out Shares and Second Earn-Out Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in this Section 4.7 as of the manner described Second Earn-Out Achievement Date; if the Third Earn-Out Achievement Date occurs at a time when the Second Earn-Out Shares have not vested, then the Second Earn-Out Shares and Third Earn-Out Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in this Section 4.7 as of the Third Earn-Out Achievement Date; and if the Third Earn-Out Achievement Date occurs at a time when the First Earn-Out Shares and Second Earn-Out Shares have not vested, then all of the Sponsor Earn-Out Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in this Section 4.7 as of the Third Earn-Out Achievement Date. (d) If, during the Earn-Out Period, the Acquiror Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, then the applicable VWAP per share specified in each of Section 4.7(b)(i), Section 4.7(b)(ii) and Section 4.7(b)(iii) shall be adjusted to maintain the same economic correlation between (x) the $10.00 per share deemed price at which the Per Share Merger Consideration is issued pursuant to this Agreement and (y) each VWAP per share specified in each of Section 4.7(b)(i), Section 4.7(b)(ii) and Section 4.7(b)(iii), respectively. (e) In the event that there is an Acquiror Sale during the Earn-Out Period, then, to the extent that the holders of Acquiror Common Stock receive an Acquiror Sale Price that is greater than or equal to the applicable Acquiror Closing Price specified in Section 3.4(b4.7(b)(i), Section 4.7(b)(ii) or Section 4.7(b)(iii) (subject to Section 4.7(d)), any Earn-Out Shares that have not previously vested in accordance with Section 4.7(b)(i), Section 4.7(b)(ii) or Section 4.7(b)(iii), as applicable, shall be deemed to have vested immediately prior to the closing of such Acquiror Sale, and the holders of any Earn-Out Shares deemed vested pursuant to this Section 4.7(e) shall be eligible to participate in such Acquiror Sale with respect to such Earn-Out Shares on the same terms, and subject to the same conditions, as apply to the holders of Acquiror Common Stock generally. Upon the consummation of an Acquiror Sale, the Earn-Out Period shall terminate. (f) If, upon the expiration or termination of the Earn-Out Period, the vesting of any of the Earn-Out Shares has not occurred, then the applicable Earn-Out Shares that failed to vest pursuant to Section 4.7(b)(i), Section 4.7(b)(ii), Section 4.7(b)(iii) or Section 4.7(e), as applicable, shall be automatically forfeited and transferred to Acquiror for no consideration, and no Person (other than the Acquiror) shall have any further right with respect thereto. Upon the occurrence of a forfeiture event, Acquiror will provide its transfer agent documentary evidence of the number of shares being forfeited (the “Forfeited Shares”) and will instruct its transfer agent to transfer the Forfeited Shares. (g) For so long as any Earn-Out Share remains subject to the vesting and forfeiture conditions specified in this Section 4.7, the holder of such Earn-Out Share shall be entitled to (i) exercise the voting rights carried by such Earn-Out Share and (ii) receive the amount of any dividends or other distributions in respect of such Earn-Out Share only when and to the extent that such Earn-Out Share vests in accordance with this Section 4.7; provided, that any such dividends or other distributions in respect of an Earn-Out Share shall be treated as income of the holder of such Earn-Out Share for U.S. federal, state and local income tax purposes, whether or not disbursed during a particular year to the holder and, to the extent required under the provisions of the Code and applicable U.S. state and local income tax Law, the holder shall be responsible for all Taxes imposed on such income (subject to the right to receive a customary tax distribution as described below). If any dividends or distributions are paid or made in respect of such Earn-Out Share during the Earn-Out Period, Acquiror shall (x) retain such dividends and distributions and (y) establish an escrow into which such dividends and distributions shall be deposited and invested for the benefit of the holder of such Earn-Out Share as and to the extent determined in good faith by Acquiror, in each case until the applicable Earn-Out Share vests in accordance with this Section 4.7; provided, however, that if the number terms of such escrow shall provide for customary tax distributions or disbursements to such holder in an amount reasonably necessary to satisfy any tax liabilities that may be imposed on such holder as a result of the payment or making of any such dividends or distributions and the accrual of any interest, income or earnings thereon during the term of such escrow. To the extent that such Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated Share fails to vest in accordance with Nasdaq Rule 5635(a)) (this Section 4.7 prior to the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for expiration of the Earn-Out Value attributable Period, any dividends or distributions paid or made in respect thereof (and any interest, income or earnings that accrue thereon) shall be forfeited to the Earn-Out Shares that would exceed the Xcel Share Limit; Acquiror for no consideration, and no Person (yother than Acquiror) solicit stockholder approval shall have any further right with respect thereto. (h) The Parties intend for the any issuance of Earn-Out Shares to be treated by the Parties for all Tax purposes as an adjustment to the aggregate consideration to be paid to the Company Stockholders pursuant to this Agreement, unless otherwise required by applicable Law or pursuant to a “determination” (as defined in excess Section 1313(a) of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) andCode or any similar provision of U.S. state, if local or non-U.S. Tax Law), and any such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit is intended to comply with, and shall be effected in accordance with Nasdaq Rule 5635(a)(2) andwith, if such stockholder approval is obtainedRev. Proc. 84-42, pay the applicable Earn1984-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000)1 C.B. 521.

Earn-Out. Consideration (a2022). (i) Subject On the Earn-Out Payment Date (2022) (as defined below), subject to the terms Parent’s and conditions Purchaser’s offset rights set forth in this Section 3.411.7, 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 is a Continuing Employee, 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 Earn-Out Payment Date (2022) or (B) the date of a Change of Control (such earlier date, the Seller shall “Earn-Out End Date (2022)”) in order for such Selling Shareholder to be eligible to receive from the Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (“its Earn-Out SharesCash Allocation (2022) (the “Continuous Employment Requirement (2022)”) or); provided, further, if elected the employment of such Continuing Employee is terminated by the Buyer as described belowapplicable Purchaser Entity without Cause, cash (“by such Continuing Employee for Good Reason or due to death or Disability, in each case, prior to the Earn-Out Cash”Payment Date (2022), the Continuous Employment Requirement (2022) shall be deemed satisfied and such Selling Shareholder (as or its heirs, if applicable, “) shall be entitled to receive its Earn-Out Consideration”Cash Allocations (2022) with 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 value schedule prepared in good faith and setting forth in reasonable detail Parent’s and Purchaser’s calculation of the EBITDA Actual Amount (2022), the EBITDA Achievement Percentage (2022), the Earn-Out Consideration (2022), the Per Share Earn-Out Consideration (2022), the Earn-Out Cash Allocation (2022) for each Selling Shareholder, and the amount, if any, by which such Earn-Out Consideration (2022) was reduced to satisfy Parent’s and Purchaser’s offset rights set forth in Section 11.7 (the “Earn-Out ValueCalculations Schedule (2022)”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if in the number event a Change of Earn-Out SharesControl is expected to occur prior to December 31, when combined with the number of Closing Shares issued at the Closing2022, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”)Parent shall, then the Buyer mayor shall cause Purchaser to, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for deliver the Earn-Out Value attributable Calculations Schedule (2022) to the Sellers’ Representative at least fifteen (15) days prior to the date of such Change of Control. (iii) Following delivery of the Earn-Out Shares that would exceed Calculations Schedule (2022), Parent and Purchaser shall allow the Xcel Share Limit; (y) solicit stockholder approval for Sellers’ Representative reasonable access to such information, books, records, work papers, personnel and resources of Parent, Purchaser and the issuance Acquired Companies, in each case, to the extent used in Parent’s and Purchaser’s preparation of the Earn-Out Shares in excess Calculations Schedule (2022). For purposes of this Agreement, the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such “Earn-Out Shares to Payment Date (2022)” shall be on the Seller; or earlier of (zi) solicit stockholder approval for the issuance of Earn-Out Shares in excess within ten (10) days following final determination of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination (2022) pursuant to Section 1.3(d)(i) and Section 1.3(d)(ii) below, (ii) if 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 Cash 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 Shares. Notwithstanding anything herein to Calculations Schedule (2022) is not disputed, or (iii) in the contrary, event the total cumulative Accelerated Earn-Out Consideration over is payable due to a Change of Control, a date that is on or prior to the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000)date of such Change of Control.

Earn-Out. (a) Subject 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 terms and conditions Seller pursuant to the calculations of the Additional Payment set forth in this Section 3.4, 5.4 and (b) three years after the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares Closing Date (“Earn-Out Shares”) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively 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”) multiplied 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 Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be product obtained by multiplying (i) the positive quantity of Coal A sold, measured in tons, by Alden Resources during such Optimal Period by (ii) the amount, if any, by which the 2010 Cost of Production, calculated as $103.20 per ton (the “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 the Additional Payment shall equal $0.00. If the 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 the Target Difference less the Earn-Out Threshold and (ii) the denominator of which shall be 8,000,000 (the “Earn-Out Calculation Denominator”); provided, however, that in no event shall the Additional Payment, together with any Partial Disposition Payment, exceed the Maximum Additional Payment. (b) Within 15 days after receipt of the Net Royalties as calculated for calculation of the 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 Royalty Target Yearperiod, less 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 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 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 5.4 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) The Seller and the Purchaser will each pay their own fees and expenses (including any fees and expenses of their accountants and other representatives) in connection with the determination of the 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 end of the Earn-Out Period pursuant to which the Purchaser achieves an IRR greater than 20% per annum and the Purchaser has not paid the Additional Payment, the Purchaser shall pay a portion of the proceeds from such Disposition equal to the product of (i) One Million Five Hundred Dollars ($1,500,000), or 50% and (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% Purchaser Receipts in excess of the first $10,000,000 Purchaser Receipts necessary to achieve an IRR of Excess Net Royalties 20% per annum to the Purchaser, in immediately available funds within 3 Business Days of the 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, the Target Difference shall be equal to an amount obtained by adding (i) the product obtained by multiplying (1) the quantity of Coal A sold, measured in tons, by Alden Resources during the Optimal Period, plus the quantity of Coal B sold, measured in tons, during the Optimal Period by (2) the amount, if any, by which the 2010 Cost of Production exceeds the per ton Cost of Production of Coal A sold by Alden Resources during the Optimal Period (without calculating the costs pertaining to Coal B) less the Earn-Out Calculation Base Amount. (h) Subject to compliance with applicable Law, during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period Purchaser shall, if reasonably requested by Seller no greater than $10,000,000 one time every fiscal quarter, report on operational and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during financial matters affecting the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% potential amount of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000)Additional Payment.

Earn-Out. (i) Buyer shall cause to be prepared income statements of Buyer for (a) Subject the calendar year ending on December 31, 2004 (the "Initial Income Statement") and (b) the twelve-month period ending on June 30, 2005 (the "Final Income Statement" and, together with the Initial Income Statement, the "Income Statements"). The Income Statements shall be prepared in accordance with GAAP, and set forth the consolidated net revenues of Buyer and its subsidiaries generated in each Existing Company Territory that arise out of Existing Company Products and Competing Products (determined in accordance with GAAP) (but, in the case of the Initial Income Statement, shall include revenues of the Company and Company Subs for the portion of such calendar year through and including the Closing Date) ("Applicable Revenues"). Each Income Statement shall be delivered by Buyer to the terms Sellers' Rep within ten (10) business days after completion of the same. The Income Statements shall become binding upon all parties, and conditions any disputes in respect thereof shall be resolved, as set forth in this Section 3.4, the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase 3.7(iv). Certain covenants of the Acquired Assets, Xcel Shares (“Earn-Out Shares”) or, if elected by parties related to the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based period beginning on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 Closing Date and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”June 30, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s2005, are set forth in Section 7.2(h). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or . (ii) Not later than the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means 30th calendar day following date on which both Income Statements have become final in accordance with Section 3.7(iv), Buyer shall: (a) 50% of if both (x) the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period Initial Income Statement shows Applicable Revenues for such calendar year in excess of $15,000,000. The Earn20,700,000 and (y) the Final Income Statement shows Applicable Revenues for such twelve-Out Consideration shall be payable month period in Earn-Out Shares excess of $22,000,000, pay to Beaumont (calculated in subject to any offset pursuant to Section 11.4) an aggregate amount equal to $0.65 for each $22 of Applicable Revenues reflected on the manner described in Section 3.4(b))Final Income Statement; provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated such payment shall in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000).no event exceed

Earn-Out. (a) Subject With respect to the terms 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) if the Gross Profit for Year One is less than $6,708,652, then the Sellers will not be entitled to any Earn-Out Payment for such period of time; or (ii) if the 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 time that is equal to $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, “Year Two”), the Sellers will collectively be entitled to an Earn-Out Payment (if any) based upon the Gross Profit for Year Two: (i) if the Gross Profit for Year Two is less than $6,708,652, then the 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 $6,708,652, then the Sellers will collectively be entitled to receive an Earn-Out Payment for such period of time that is equal to $500,000. (c) For purposes of this Section 1.6, “Gross Profit” will be calculated by Buyer in accordance with Buyer’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 3.4, 1.6 have been satisfied and subject to the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (“Earn-Out Shares”) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described setoffs rights in Section 3.4(b))5.5; and provided, howeverfurther, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding any dispute as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Earn-Out Cash Payment has been resolved pursuant to Section 1.6(e). For each fiscal month during Year One and Earn-Out Shares. Notwithstanding anything herein Year Two, Buyer agrees to deliver to the contrarySellers, within 30 days after the total 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 Earn-Out Consideration over Gross Profit for the entire Earn-Out Period applicable year that includes such fiscal month. The Gross Profit Statement covering Year One or Year Two, as applicable, shall not exceed Six Million Dollars ($6,000,000)be referred to herein as an “Annual Gross Profit Statement”.

Earn-Out. In addition to the Purchase Price, the Stockholders will be entitled to receive the following earn-out payments (the "Earn-Out Payments") as additional purchase price: (a) Subject to The Buyer shall pay the terms and conditions set forth in this Section 3.4, Stockholders the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (“Earn-Out Shares”) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, (the "Earn-Out") equal to fifty percent (50%) of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% amount of the first $10,000,000 of Excess Net Royalties during Company's aggregate earnings before interest, taxes, goodwill amortization and incentive compensation under the Employment Agreements (as defined hereafter) (excluding any corporate allocations by Buyer, except for direct services Buyer provides to the Company consistent with the Company's past practices) ("Pretax Profits") for the three year period beginning July 1, 1998, and ending June 30, 2001 (collectively, the "Earn-Out Period"). All Earn-Out Payments shall be payable to each Stockholder, pro rata in accordance with each Stockholder's ownership of the Shares as set forth in Schedule 3.4 hereto. (b) 20% of aggregate Excess Net Royalties during As provided in Section 1.5(f), following July 1, 1999, the Buyer shall pay the Stockholders an amount (the "1999 Earn-Out Period greater than $10,000,000 and up Payment") equal to $15,000,000 and one-half (1/2) of fifty percent (50%) of the Pretax Profits of the Company from July 1, 1998 to June 30, 1999. (c) 0% of aggregate Excess Net Royalties during As provided in Section 1.5(f), following July 1, 2000, the Buyer shall pay the Stockholders an amount (the "2000 Earn-Out Period Payment") equal to one-half (1/2) of fifty percent (50%) of the Pretax Profits of the Company from July 1, 1999 to June 30, 2000. (d) As provided in excess of $15,000,000. The Section 1.5(f), following July 1, 2001, the Buyer shall pay the Stockholders an amount (the "Final Earn-Out Consideration shall be payable in Payment") equal to fifty percent (50%) of the Pretax Profits of the Company from July 1, 1998 to June 30, 2001, less the 1999 Earn-Out Shares (calculated in Payment and less the manner described in Section 3.4(b)); provided, however, that if the number of 2000 Earn-Out Shares, when combined with Payment. If the number of Closing Shares issued at Final Earn-Out Payment is less than the Closing, will exceed 4.99% aggregate of the aggregate number of Xcel Shares outstanding as of ▇▇▇▇ ▇▇▇▇-▇▇▇ Payment plus the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”)2000 Earn-Out Payment, then the Stockholders shall pay to the Buyer may, in its sole and unfettered discretion, elect to (x) pay the difference between the Final Earn-Out Cash for Payment and the aggregate of the ▇▇▇▇ ▇▇▇▇-▇▇▇ Payment plus the 2000 Earn-Out Value attributable Payment, but in no event shall the Stockholders be required to pay Buyer more than the aggregate of the ▇▇▇▇ ▇▇▇▇-▇▇▇ Payment plus the 2000 Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000)Payment.

Earn-Out. (a) Subject Independent of any amounts paid by Buyer to the terms and conditions set forth in this Seller under Section 3.42.2 hereof, the Seller shall be eligible Parties intend to receive from the Buyer, as additional consideration provide for the sale and purchase of the Acquired Assets, Xcel Shares (“Earn-Out Shares”) or, if elected possible payment by the Buyer of additional consideration to the Seller based on the financial performance of the GMC Program and the Healthy Families Program as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value operated by the Buyer during the 36 months following the Closing Date (the “Earn-Out”). (b) The Seller’s Earn-Out Value”) shall be based on the Excess Net Royalties for 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 of determined in a manner consistent with Buyer’s historical ordinary course practices (the four (4) calendar years commencing with “Gross Margin Amount”). The Gross Margin Amount shall be measured over the calendar year 2019 twelve-month period immediately following the Closing Date, and ending with over the calendar year 2022 next two successive twelve-month periods (each such continuous twelve twelve-month measuring period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the being referred to herein as an “Earn-Out Period”). (c) multiplied by If the Applicable Percentage(s)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. The Excess Net Royalty for each Royalty Target Year shall be If the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars (Gross Margin Amount equals or exceeds $1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties 8,800,000 during the applicable Earn-Out Period, then the Buyer shall pay the Seller fifteen percent (b15%) 20% of the Gross Margin Amount for such Earn-Out Period. (d) In no event shall the aggregate Excess Net Royalties during 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 Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) andpayment, if such stockholder approval is obtainedany, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration Period, together with a combination check representing the amount of the Earn-Out Cash 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 Shares. Notwithstanding anything herein payment, including but not limited to review of historical and current incurred but not reported calculations. (f) If the contrary, Seller disputes the total cumulative Buyer’s calculation of the Earn-Out Consideration over payment, the entire Seller shall so notify the Buyer in writing within ten days after receipt of the written calculation referred to in this Section 2.3. The Parties shall then attempt to resolve such dispute regarding the Earn-Out Period payment within ten days. If the Parties are unable to resolve their dispute, the Parties shall not exceed Six Million Dollars then submit the matter to a mutually agreed-upon accounting firm ($6,000,000“Accounting Firm”), who shall calculate the Earn-Out payment as described above. The Accounting Firm shall submit its written calculation of the Earn-Out to the Parties within 45 days. If the Accounting Firm’s calculation shows the Earn-Out payment to be equal to or less than the amount determined by the Buyer, then 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 expenses.

Earn-Out. (a) Subject In addition to the Purchase Price, Seller shall have the opportunity to earn, and Purchaser shall pay, subject to the terms and conditions of this Section 1.3, additional cash proceeds, which will be an upward adjustment to the Purchase Price, in an aggregate amount not to exceed twenty-five million dollars ($25,000,000), calculated and determined in the manner set forth in this Section 3.41.3. (b) Purchaser shall pay Seller an annual earn-out payment (the “Annual Earn-Out Payment”) (if any) for each of the first five (5) calendar years from January 1, 2017 (each an “Earn Out Year”), with the calendar year ending December 31, 2017, referred to as “Year One,” the calendar year ending December 31, 2018, referred to as “Year Two,” the calendar year ending December 31, 2019, referred to as “Year Three,” the calendar year ending December 31, 2020, referred to as “Year Four” and the calendar year ending December 31, 2021, referred to as “Year Five,” to be calculated as set forth on Schedule 1.3(b). (c) Within sixty (60) days after the end of an applicable Earn-Out Year, Purchaser shall (i) prepare or cause to be prepared a statement setting forth: (A) following Year One, the Seller shall be eligible to receive from the Buyer, as additional consideration for the sale and purchase calculation of the Acquired AssetsAnnual Earn-Out Payment applicable to Year One; (B) following Year Two, Xcel Shares the calculation of the Annual Earn-Out Payment applicable to Year Two; (C) following Year Three, the calculation of the Annual Earn-Out Payment applicable to Year Three; (D) following Year Four, the calculation of the Annual Earn-Out Payment applicable to Year Four and (E) following Year Five, the calculation of the Annual Earn-Out Payment applicable to Year Five (with respect to each Earn-Out Year, an “Earn-Out SharesCalculation”) or, if elected by and (ii) deliver the Buyer as described below, cash (“applicable Earn-Out Cash”Calculation to Seller, together with (A) reasonable supporting documents and (as applicableB) payment to Seller, “by wire transfer of immediately available funds to an account designated in writing by Seller, of the Annual Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amountPayment, if any, calculated by Purchaser to be payable based on such Earn-Out Calculation. Seller shall have a period of thirty (30) days after receipt of the Net Royalties applicable Earn-Out Calculation with respect to the applicable Earn-Out Year to notify Purchaser in writing of Seller’s election to accept or reject such Earn-Out Calculation as calculated prepared by Purchaser. In the event Seller rejects in writing such Earn-Out Calculation as prepared by Purchaser, such rejection notice (the “Rejection Notice”) shall contain the reasons for such Royalty Target rejection in reasonable detail and set forth the amount of the requested adjustment. In the event no Rejection Notice is received by Purchaser during such thirty (30)-day period, the Annual Earn-Out Payment for such Earn-Out Year (as set forth in Purchaser’s Earn-Out Calculation) shall be deemed to have been accepted and shall be final, conclusive and binding on the Parties hereto. In the event that Seller shall timely reject an Earn-Out Calculation, Purchaser and Seller shall promptly (and in any event within thirty (30) days following the date upon which Purchaser received the applicable Rejection Notice from Seller rejecting such Earn-Out Calculation) attempt in good faith to make a joint determination of the Annual Earn-Out Payment for the applicable Earn-Out Year, less and such determination and any required adjustments resulting therefrom shall be final, conclusive and binding on the Parties hereto. In the event Seller and Purchaser are unable to agree upon the Annual Earn-Out Payment for the applicable Earn-Out Year within such thirty (30)-day period, then Purchaser and Seller shall jointly engage the Accounting Firm to resolve such dispute and promptly submit such dispute for resolution to the Accounting Firm. The Parties shall jointly instruct the Accounting Firm to make a determination within thirty (30) days after its engagement or as soon as practicable thereafter. The Accounting Firm’s determination shall be limited to resolving the disagreement set forth in the Rejection Notice. The determination of the Accounting Firm and any required adjustments resulting therefrom shall be final, conclusive and binding on all the Parties hereto. The fees and expenses of the Accounting Firm shall be allocated between and paid by Purchaser and/or Seller, respectively, based upon the percentage that the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Accounting Firm. (d) If the Annual Earn-Out Payment due on account of any Earn-Out Year, as finally determined pursuant to Section 1.3(c), is greater than the amount (if any) initially paid by Purchaser on account of such Earn-Out Year, then the additional Annual Earn-Out Payment due shall be payable within five (5) days of such final determination pursuant to Section 1.3(c), and Purchaser shall deliver to Seller such additional amount by wire transfer of immediately available funds to the account designated in writing by Seller to Purchaser. (e) For the purposes of complying with the terms set forth in this Section 1.3, Purchaser shall cooperate with and make available to Seller all pertinent books, records and data, and shall permit reasonable access to its facilities and personnel upon reasonable advance written notice and during normal business hours, as may be reasonably required in connection with the preparation and analysis of the Earn-Out Calculation for any Earn-Out Year and the resolution of any disputes thereunder as set forth on Schedule 1.3(e). In addition, Purchaser shall also provide such access upon request by Seller and cooperate with Seller in connection with making interim calculations of amounts due pursuant to this Section 1.3. If Purchaser breaches its obligations under this Section 1.3(e), the dispute period set forth in Section 1.3 shall be automatically extended until such breach is cured by Purchaser. (f) From and after the Closing Date and through and including the expiration of Year Five, unless otherwise agreed to in writing by Seller, Purchaser shall, and shall cause any Affiliate of Purchaser to: (i) One Million Five Hundred Dollars not sell, transfer or otherwise dispose of any asset that is necessary or required in connection with the production or sale of renewable natural gas or related RINS or LCFS Credits; ($1,500,000)ii) use commercially reasonable efforts to maximize the sale of renewable natural gas and the related RINS or LCFS Credits pursuant to applicable supply agreements and to seek an extension of any RIN Contract or LCFS Contracts; (iii) cause the books and records of the Business set forth on Schedule 1.3(e) to be maintained in a manner that will provide the information necessary for the calculation of the Annual Earn-Out Payment; (iv) not accelerate, delay, hinder or prevent the production or sale of renewable natural gas or the related RINS or LCFS Credits in any manner that is not consistent with Seller’s operation of the Business prior to the Closing Date; and (v) not take any action with respect to the Business that has as its purpose or will likely result in artificial reduction of the revenues of the Business or the resulting RINS or LCFS Credits. (g) In the event that Purchaser or any Purchaser Indemnified Person has a Liquidated Claim against Seller under this Agreement, including a Liquidated Claim for Losses under ARTICLE VII, Purchaser may withhold and offset the amount of such Liquidated Claim against any Annual Earn-Out Payment(s) owed to Seller under this Section 1.3 until either (i) the Liquidated Claim is satisfied in full or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Annual Earn-Out Period, (bPayment(s) 20% owed to Seller are completely exhausted; provided that nothing in this Section 1.3(g) shall limit Purchaser’s or the Purchaser Indemnified Persons’ ability to recover the full amount of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to the Earn-Out Shares that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if any such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000)Liquidated Claim.

Earn-Out. (a) Subject Buyer shall pay to the terms and conditions set forth in this Section 3.4, the Seller shall be eligible Sellers an amount equal to receive from the Buyer, as additional consideration for the sale and purchase fifty percent (50%) of the Acquired Assets, Xcel Shares amount by which annual Gross Profit of the Company exceeds the amount set out in Schedule 2.2 (such amount being referred to herein as the “Earn-Out Sharesout Threshold”) or, if elected by the Buyer as described below, cash (“during each Earn-Out Cash”out Year, to be calculated after the close of each Earn-out Year (with Gross Profit prorated for a 12 month period in the case of Earn-out Year One and the final period in Section 2.7 (c) (as applicable, “Earn-Out Consideration”iv)) with a value (the “Earn-Out Valueout Amount”) based on ). In the Excess Net Royalties for each event that in any Earn-out Year the annual Gross Profit of the four Company is less than the Earn-out Threshold (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively deficiency being referred to herein as the “Earn-Out Periodout Deficiency”) multiplied by ), the Applicable Percentage(s). The Excess Net Royalty Earn-out Threshold for each Royalty Target the following Earn-out Year shall be deemed to be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration shall be payable in Earn-Out Shares (calculated in the manner described in Section 3.4(b)); provided, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable amount equal to the Earn-Out Shares out Threshold for that would exceed the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess out Year plus the Earn-out Deficiency from the immediately preceding Earn-out Year, and so on for each successive Earn-out Year. For purposes of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) andforegoing calculation, if such stockholder approval is obtained, issue such the Earn-Out Shares to the Seller; or (z) solicit stockholder approval out Threshold for the issuance of Earn-Out Shares in excess out Year One shall be pro rated to equal five-twelfths (5/12ths) of the Xcel Share Limit amount set out in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Schedule 2.2 and for Earn-Out Consideration with a combination out Year Four shall be equal to seven-twelfths (7/12ths) of the said amount set out in Schedule 2.2. Notwithstanding any other provision of this Agreement, the Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein out Amount paid to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period Sellers shall not exceed Six Million Dollars in the aggregate the amount set out in Schedule 2.2 ($6,000,000the “Earn-out Cap”), upon payment of which the Buyer shall have no further obligation or liability hereunder whatsoever. (b) The Earn-out Amount shall be paid by wire transfer by Buyer to an account specified by Sellers on or before the later of the last day of the third calendar month following each Earn-out Year or three (3) business days after the calculation of the Earn-out Amount becomes binding and conclusive on the parties pursuant to Section 2.10.

Earn-Out. (a) Subject In addition to the Closing Purchase Price, JAKKS Pacific shall pay the Earn-Out to the Agent in the form of Common Stock for the benefit and account of the several Shareholders in the amount and payable in the manner and upon the terms and conditions set forth below: (a) The Earn-Out for each Earn-Out Year shall be determined by the increase, if any, in this Section 3.4Kidz Biz Sales for such Earn-Out Year over the prior year's Kidz Biz Sales, expressed as a percentage of the prior year's Kidz Biz Sales (the "Percentage Y/O/Y Increase"), and shall be earned and payable as follows: (i) if the Percentage Y/O/Y Increase is less than or equal to five (5%) percent, there will be no Earn-out Payment for the Earn-Out Year; (ii) if the Percentage Y/O/Y Increase is greater than five (5%) percent but less than or equal to ten (10%) percent, the Seller shall be eligible Earn-out Payment for such Earn-Out Year will equal the number of shares of Common Stock equal to receive from the Buyer, as additional consideration for product of (i) a fraction the sale numerator of which is five (5%) percent and purchase the denominator of which is the excess of the Acquired AssetsPercentage Y/O/Y Increase over five (5%) percent and (ii) 25,749 shares of Common Stock; and (iii) if the Percentage Y/O/Y Increase is greater than ten (10%) percent, Xcel Shares the Earn-out Payment for such Earn-Out Year will be 25,749 shares of Common Stock. (“b) The Earn-Out Shares”) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties for each of the four (4) calendar years commencing with the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “Earn-Out Period”) multiplied by the Applicable Percentage(s). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, for each Earn-Out Year shall be delivered as soon as practicable, but in any event not later than sixty (60) days, after the end of such Earn-Out Year. (c) On each Earn-Out Payment Date, JAKKS Pacific shall pay the Earn-Out, if any, for the applicable Earn-Out Year to the Agent (for the benefit and account of the Net Royalties as calculated several Shareholders) in the manner provided in a Notice given to JAKKS Pacific pursuant to Section 3.2 or, if no such Notice is given, by delivering share certificates for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out PeriodShares in the names of each Shareholder to the Agent, (b) 20% each certificate to be for the same proportion of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% Shares for that Earn-Out Year as the proportion of aggregate Excess Net Royalties during Earn-Out Shares received by such Shareholder in payment of the last preceding Earn-Out Payment, or if no preceding Earn-Out Payment has then been made, for the same proportion of the Earn-Out Period Shares as the proportion of the JAKKS Pacific Shares received by such Shareholder on Closing. (d) In the event that JAKKS Pacific ceases to control Kidz Biz UK or Far East and David Lipman's employment is terminated without "cause" by Kidz Biz UK ▇▇ ▇▇ ▇▇▇▇▇ ▇ipman for "good reason" (as such terms are used in excess the Employme▇▇ ▇▇▇▇▇▇▇▇▇) prior to the end of $15,000,000. The the term of the Employment Agreement, JAKKS Pacific shall within ten (10)business days thereafter deliver to the Agent for the benefit and account of the Shareholders 25,749 shares of Common Stock in respect of the then current Earn-Out Consideration shall be payable Year in which such events occur in full satisfaction of the Earn-Out Shares obligation for such Earn-Out Year, and 25,749 shares of Common Stock in respect of each Earn-Out Year thereafter, such delivery to occur within thirty (calculated in 30) days after the manner described in Section 3.4(b)); end of the relevant subsequent Earn-Out Year, if any, provided, however, that if such termination occurs after the third anniversary of the Closing under this Agreement, the number of Earn-Out Shares, when combined with the number shares of Closing Shares issued at the Closing, will exceed 4.99% Common Stock thereafter deliverable on account of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to shall equal the average number of shares of Common Stock delivered in satisfaction of the Earn-Out Shares that would exceed obligation, if any, during the Xcel Share Limit; (y) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if Years ending prior to such stockholder approval is obtained, issue such Earn-Out Shares to the Seller; or (z) solicit stockholder approval for the issuance of Earn-Out Shares in excess of the Xcel Share Limit in accordance with Nasdaq Rule 5635(a)(2) and, if such stockholder approval is obtained, pay the applicable Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to the contrary, the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000)termination.

Earn-Out. (a) Subject Annual cash payments to the terms and conditions set forth MGR Shareholders in this Section 3.4, the Seller shall aggregate maximum amount of $17 million may be eligible earned by the MGR Shareholders (the "Earn-Out") for the years 2002 through 2005 in accordance with the following schedule: Year Amount ---- ------ 2002 $3,000,000 2003 $5,000,000 2004 $5,000,000 2005 $4,000,000 The annual cash payments will be remitted to receive the MGR Shareholders upon the completion of combined supplemental financial statements of the Companies derived from the Buyer, as additional consideration for the sale and purchase audited consolidated financial statements of the Acquired Assets, Xcel Shares (“Earn-Out Shares”) or, if elected by the Buyer as described below, cash (“Earn-Out Cash”) (as applicable, “Earn-Out Consideration”) with a value (the “Earn-Out Value”) based on the Excess Net Royalties Stonepath for each of the four (4) 2002, 2003, 2004 and 2005 calendar years commencing with (the calendar year 2019 and ending with the calendar year 2022 (each such continuous twelve month period commencing on January 1 and ending December 31 a “Royalty Target Year”, and cumulatively the “"Earn-Out Period”) multiplied by the Applicable Percentage(sFinancial Statements"). The Excess Net Royalty for each Royalty Target Year shall be the positive amount, if any, of the Net Royalties as calculated for such Royalty Target Year, less the greater of (i) One Million Five Hundred Dollars ($1,500,000), or (ii) the maximum Net Royalties for any previous Royalty Target Year. “Applicable Percentage” means (a) 50% of the first $10,000,000 of Excess Net Royalties during the Earn-Out Period, (b) 20% of aggregate Excess Net Royalties during the Earn-Out Period greater than $10,000,000 and up to $15,000,000 and (c) 0% of aggregate Excess Net Royalties during the Earn-Out Period in excess of $15,000,000. The Earn-Out Consideration Financial Statements shall be payable completed concurrently with and as a part of the audited consolidated financial statements of Stonepath as soon as reasonably practicable after the end of such calendar years, but in no event shall such Earn-Out Shares (calculated in the manner described in Section 3.4(b)); providedFinancial Statements, however, that if the number of Earn-Out Shares, when combined with the number of Closing Shares issued at the Closing, will exceed 4.99% of the aggregate number of Xcel Shares outstanding as of the date of this Agreement (calculated in accordance with Nasdaq Rule 5635(a)) (the “Xcel Share Limit”), then the Buyer may, in its sole and unfettered discretion, elect to (x) pay Earn-Out Cash for the Earn-Out Value attributable to payments and computations of the Earn-Out Shares that would exceed due thereunder, be delivered and remitted (to the Xcel Share Limit; Shareholders' Agent and its counsel in accordance with the notice provisions set forth in Section 13.5 of this Agreement) later than ninety (y90) solicit stockholder approval for days after such applicable calendar year-end (the issuance "Year-End Statement"). (i) Payment of each annual installment of the Earn-Out Shares in excess is contingent upon the Companies reporting combined net income before Taxes of at least $6.0 million for each applicable Earn-Out year set forth above. For purposes of computing the net income of the Xcel Share Limit 2002 calendar year in accordance connection with Nasdaq Rule 5635(a)(2the Earn-Out, the Purchaser, Stonepath and the Shareholders agree that the net income of the period commencing on the Closing Date to and through December 31, 2002 shall be utilized for determining the 2002 Earn-Out net income of the Companies. To the extent the reported combined net income before Taxes falls below $6.0 million (the "Earn-Out Shortfall") andfor any Earn-Out year, if the Earn-Out payment with respect to that Earn-Out year will be reduced on a dollar-for-dollar basis to the extent of the Earn-Out Shortfall. In the event that an Earn-Out Shortfall occurs with respect to any Earn-Out year and the combined net income before Taxes of the Companies for any other Earn-Out year (whether before or after the Earn-Out year with respect to which the Earn-Out Shortfall has occurred) exceeds $6.0 million, the amount of such stockholder approval is obtained, issue excess combined net income before Taxes shall be applied to reduce such Earn-Out Shares Shortfall;) provided that the amount of any such excess so used shall not be available for further application pursuant to the Seller; or (z) solicit stockholder approval this sentence. Solely for the issuance purposes of determining the combined net income before Taxes of the Companies, Stonepath and the Purchaser covenant and agree that during the calendar years 2001, 2002, 2003, 2004 and 2005 (the "Earn-Out Shares Period") (A) the Companies will continue to be operated (including structure and cost base) in excess a manner substantially similar in all material respects to the operations of the Xcel Share Limit Companies under the Shareholders prior to the Closing Date, and (B) any material changes to corporate operations, structure or cost base will not be undertaken without the prior written consent of the Shareholders' Agent, provided, in accordance with Nasdaq Rule 5635(a)(2the event of any departure from the requirements of (A) and, if such stockholder approval is obtained, pay the applicable or (B) in any Earn-Out Consideration with a combination of Earn-Out Cash and Earn-Out Shares. Notwithstanding anything herein to year, as the contrary, sole remedy (other than the total cumulative Earn-Out Consideration over the entire Earn-Out Period shall not exceed Six Million Dollars ($6,000,000).proviso which immediately