Common use of Earn-Out Clause in Contracts

Earn-Out. (a) Seller shall be entitled to receive the following payments (each, an “Earn Out Payment”) to the extent the Business achieves the applicable EBITDA (as defined below) targets: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greater. (b) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Out Statement”). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the Earn-Out Payment, the Management Fee described in Section 4.8 shall be added back to increase earnings and not be treated as an expense of the Buyer.

Earn-Out. (a) Subject to the terms and conditions set forth in this Section 3.4, the Seller shall be entitled eligible to receive from the following payments Buyer, as additional consideration for the sale and purchase of the Acquired Assets, Xcel Shares (each, an “Earn Earn-Out PaymentShares”) to or, if elected by the extent the Business achieves the applicable EBITDA Buyer as described below, cash (“Earn-Out Cash”) (as defined belowapplicable, “Earn-Out Consideration”) targets: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the Closing Date with a value (the “Initial Earn 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”) is $2,500,000 or greater; 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 (iii) An Earn Out Payment of Two One Million Five Hundred Thousand Dollars ($200,0001,500,000), if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greater. (b) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Out Statement”). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment maximum Net Royalties for such Earn Out Period, where the any previous Royalty Target Year. “Achievement Applicable Percentage” is the percentage determined by dividing means (Aa) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of the first $200,000), exclusive 10,000,000 of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating Excess Net Royalties during the Earn-Out PaymentPeriod, (b) 20% of aggregate Excess Net Royalties during the Management Fee 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 4.8 shall be added back to increase earnings and not be treated as an expense 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 Buyeraggregate 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) Seller shall The amount to be entitled to receive the following payments paid (each, an “Earn Out Payment”) subject to the extent terms and conditions of Sections 1.6(d), Section 1.7 and Section 1.9), by Purchaser on the Business achieves the applicable EBITDA (as defined below) targets: (i) An Earn Earn-Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Earn-Out PeriodAmount”) is $2,500,000 or greater; (iishall comprise the Earn-Out Cash Payment as defined in Section 1.6(b) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000)below, if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Earn-Out Period, the “Earn Out Periods” and each, an “Earn Out Period”Stock Payment as defined in Section 1.6(c) is $2,500,000 or greaterbelow. (b) Within ninety (90) days following The Earn-Out Cash Payment shall be the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period cash amount (the “Earn Earn-Out StatementCash Portion”). Seller ) notified by the Purchaser to the Sellers’ Representative in writing no later than 18:00 hours in Paris on the fourth Business Day before the Earn-Out Payment Date, provided that this amount shall have thirty be equal to or greater than forty percent (3040%) days after receipt of the Earn Earn-Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the BuyerCalculation Amount. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn The Earn-Out Period is less than $2,500,000 but greater than $1,500,000, Buyer Stock Payment shall pay a partial Earn Out Payment to Seller in an amount be equal to the product determined by multiplying a number of shares of Purchaser Common Stock (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage Earn-Out Stock Payment”) determined by dividing (Ax) the Earn-Out Calculation Amount, minus the Earn-Out Cash Portion and minus five percent (5%) of the amount (if any) by which the Earn-Out Cash Portion exceeds 40% (forty) percent of the Earn-Out Calculation Amount by (y) the average of the closing price of Purchaser shares as reported on the NASDAQ website, over a period of twenty (20) consecutive trading days, the last day included in such period being the trading day five (5) trading days prior to the Earn-Out Payment Date (the “Earn-Out Purchaser Shares Price”). (d) The Earn-Out Calculation Amount shall be equal to the sum of (i) the EBITDA of the Business for the applicable Earn Out Period less Amount as defined below and (ii) $1,500,000, by the Gross Profit Amount as defined below: (Bi) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the The EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement Amount shall be equal to: (1) nine million euros (€9,000,000) if Actual EBITDA is equal to $100,000 or exceeds Budgeted EBITDA; or (i.e. 50% 2) nine million euros (€9,000,000) multiplied by a fraction, the numerator of $200,000which shall be Actual EBITDA minus seven million four hundred forty thousand euros (€7,440,000) and the denominator of which shall be one million eight hundred sixty thousand euros (€1,860,000), exclusive if Actual EBITDA is equal to or exceeds eighty percent (80%) of interestBudgeted EBITDA and is below Budgeted EBITDA; or (3) zero if Actual EBITDA is less than eighty percent (80%) of Budgeted EBITDA. (dii) To the extent Seller The Gross Profit Amount shall be equal to: (1) six million euros (€6,000,000) if Actual Gross Profit is entitled equal to all or exceeds Budgeted Gross Profit; or (2) six million euros (€6,000,000) multiplied by a portion of an Earn Out Payment in accordance with this Section 1.6fraction, the applicable Earn Out Payment(s) (or portion thereof) numerator of which shall be paid on Actual Gross Profit minus nineteen million three hundred ninety-four thousand and four hundred euros (€19,394,400) and the date that denominator of which shall be four million eight hundred fourty-eight thousand and six hundred euros (€4,848,600), if Actual Gross Profit is three equal to or exceeds eighty percent (80%) of Budgeted Gross Profit and is below Budgeted Gross Profit; or (3) years from the Closing Date zero if Actual Gross Profit is less than eighty per cent (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (580 %) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination AgreementBudgeted Gross Profit. (e) For purposes of this Agreement, “EBITDA” Actual EBITDA shall mean the Company’s earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period endedamortization, determined in accordance with US GAAP. For purposes of calculating , for the period starting on January 1, 2006 and ending on December 31, 2006 (the “Earn-Out PaymentPeriod”); provided, the Management Fee described however (i) for clarification purposes, it is understood that in Section 4.8 determining Actual EBITDA, stock option-based compensation is excluded; (ii) Integration Costs shall be added back (positive EBITDA impact); (iii) the insertion, increase or decrease of a general reserve for uncollectible accounts receivable (it being understood that the Company shall create such a general provision before the Closing Date in accordance with Purchaser’s accounting policies) shall be added back; (iv) in addition to increase earnings and not be treated writing off any accounts receivable as an expense required by US GAAP, any accounts receivable of the BuyerCompany that are one hundred twenty (120) days past due shall be written off and the resulting expense included in Actual EBITDA; and (v) the amount by which any provisions for royalties to content providers and collecting societies and other licensors accrued prior to December 31, 2005 are decreased shall be excluded from the EBITDA calculation; (f) Budgeted EBITDA shall be nine million and three hundred thousand euros (€9,300,000). (g) Actual Gross Profit shall mean the Company’s gross profit, determined in accordance with the Company’s past practices, which means revenues minus cost of sales, and for such purpose cost of sales includes without limitation the following: (i) the sum of royalties paid or otherwise due to collecting societies, labels (“Droits d’auteurs et de reproduction”) or account number 6516 as defined in the official French Chart of Accounts (“Plan Comptable Général”); (ii) variable royalties on patents, licences, brand, software and others (“Redevances pour brevets, licences, marques, logiciels et valeurs similaires”) or account numbered 6511 as defined in the official French Chart of Accounts (“Plan Comptable Général”). (h) Budgeted Gross Profit shall be equal to twenty-four million two hundred forty-three thousand euros (€24,243,000).

Earn-Out. (a) Seller Subject to the following terms and conditions, Parent shall make the following payments, if any, to the Exchange Agent (for distribution to the Company Members in accordance with their respective Pro Rata Percentages) (collectively, the “Earn-Out Payments”): (i) An amount of up to $25 million (the “Gross Profit Earn-Out”) shall be entitled payable as follows: (A) An amount up to receive $12.5 million in the following payments aggregate (each, an the “Earn Out PaymentGP Earn-Out”) shall be payable as follows: if during the first 24 months starting on the first day of the month following the month in which the Closing occurs (the “Gross Profit Earn-Out Period”), the Gross Profit generated by the Novitium Portfolio minus Required CapEx is greater than or equal to $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); 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 extent calculation of the Business achieves Gross Profit Earn-Out do not exceed $16 million per year for each year during the Gross Profit Earn-Out Period (“R&D Expenses”); and/or (ii) Another amount up to $21.5 million (the “505(b)(2) Earn-Out”) shall be payable as follows: Out of the Net Profit generated by the 505(b)(2) Products, the Company Members shall receive 20%, payable on a quarterly basis until the earlier to occur of (i) the sum of all such payments being equal to $21.5 million in the aggregate and (ii) the tenth anniversary of FDA Approval of the applicable EBITDA 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 belowin such Key Person’s Employment Agreement) targetsor 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 achievement or maximization of any Earn-Out Payment; provided, however, that: (i) An Earn Out Payment in respect of Two Hundred Thousand Dollars 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 ($200,000)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 EBITDA Company to expend more than $16 million per year of R&D Expenses, Parent shall not be relieved from its obligation to pay the Business for ANDA Filing Earn-Out (if the trailing twelve (12conditions set forth in Section 1.12(a)(i)(B) month period from the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater;are otherwise satisfied); and (ii) An Earn 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 $16 million per year of R&D Expenses, Parent shall not be relieved from its obligation to pay the GP Earn-Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12conditions set forth in Section 1.12(a)(i)(A) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greaterare otherwise satisfied); and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA in respect of the Business for 505(b)(2) Earn-Out, none of Parent or the trailing twelve (12) month period from Company shall take any action the second anniversary principal purpose of which is to frustrate the Closing Date (ability to achieve the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greaterpayments contemplated thereby. (bf) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Out Statement”). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller No Company Member shall have the right to inspect Buyer’s books 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 records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related any attempt to the determinations of EBITDA do so shall be void. The Earn-Out Payments and the resulting Earn Out Payment. Prior provisions of Section 1.12 relating to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the Earn-Out PaymentPayments are intended solely for the benefit of the Company Members, and the Management Fee described right (if any) to receive distributions in Section 4.8 connection with the Earn-Out Payment shall be added back personal to increase earnings those Persons. Notwithstanding the foregoing, a Company Member may transfer such rights (i) in the case of a Company Member that is an entity, to such Company Member’s successors or a transferee of all or substantially all of such Company Member’s assets and not be treated as (ii) in the case of a Company Member that is a natural person, if such transfer is made for bona fide estate planning purposes, either during his or her lifetime or on death by will or intestacy to such natural person’s estate, spouse, children, ancestors or any descendants of any ancestors; provided, that each such transfer shall comply with applicable securities laws and, assuming such transfer is permitted by applicable securities laws, each such transferee shall make appropriate securities laws representations and warranties pursuant to an expense instrument of the Buyerassignment and assumption reasonably satisfactory to Parent.

Earn-Out. 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) Seller The Earn-Out for each Earn-Out Year shall be entitled to receive determined by the following payments increase, if any, in Kidz 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 (eachthe "Percentage Y/O/Y Increase"), an “Earn Out Payment”) to the extent the Business achieves the applicable EBITDA (and shall be earned and payable as defined below) targetsfollows: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business Percentage Y/O/Y Increase is less than or equal to five (5%) percent, there will be no Earn-out Payment for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Earn-Out Period”) is $2,500,000 or greaterYear; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA Percentage Y/O/Y Increase is greater than five (5%) percent but less than or equal to ten (10%) percent, the Earn-out Payment for such Earn-Out Year will equal the number of shares of Common Stock equal to the product of (i) a fraction the numerator of which is five (5%) percent and the denominator of which is the excess of the Business for the trailing twelve Percentage Y/O/Y Increase over five (125%) month period from the first anniversary percent and (ii) 25,749 shares of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greaterCommon Stock; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve Percentage Y/O/Y Increase is greater than ten (1210%) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Periodpercent, the “Earn Earn-out Payment for such Earn-Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greaterYear will be 25,749 shares of Common Stock. (b) Within ninety The Earn-Out Shares, if any, for each Earn-Out Year shall be delivered as soon as practicable, but in any event not later than sixty (9060) days following days, after the end of such Earn-Out Year. (c) On each Earn Earn-Out PeriodPayment Date, Buyer JAKKS Pacific shall prepare pay the Earn-Out, if any, for the applicable Earn-Out Year to the Agent (for the benefit and account of the 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 the Earn-Out Shares in the names of each Shareholder to the Agent, each certificate to be for the same proportion of the Earn-Out Shares for that Earn-Out Year as the proportion of 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 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 the Employment Agreement) prior to the end of the term of the Employment Agreement, JAKKS Pacific shall within ten (10)business days thereafter deliver to Seller a statement the Agent for the benefit and account of the EBITDA Shareholders 25,749 shares of Common Stock in respect of the Business then current Earn-Out Year in which such events occur in full satisfaction of the Earn-Out obligation for such Earn Earn-Out Period (the “Earn Year, and 25,749 shares of Common Stock in respect of each Earn-Out Statement”). Seller shall have Year thereafter, such delivery to occur within thirty (30) days after receipt the end of the Earn relevant subsequent Earn-Out Statement (Year, if any, provided, however, that if such termination occurs after the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration third anniversary of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller Closing under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization number of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes shares of calculating Common Stock thereafter deliverable on account of the Earn-Out Payment, shall equal the Management Fee described average number of shares of Common Stock delivered in Section 4.8 shall be added back to increase earnings and not be treated as an expense satisfaction of the BuyerEarn-Out obligation, if any, during the Earn-Out Years ending prior to such termination.

Earn-Out. (a) Seller Purchaser shall pay to the Sellers as additional consideration for the Purchased Assets an amount in cash not to exceed in the aggregate $53,000,000 (the “Earn-Out”) in accordance with this Section 2.7. An Earn-Out Payment (as defined below) may be entitled to receive achieved for each of the following payments 12-month periods ending on December 31, 2014 and December 31, 2015 (each, an “Earn Earn-Out PaymentYear”) as follows: (b) On or before February 28, 2015, Purchaser shall pay to the extent Sellers, an amount based on Total Revenues for the Business achieves the applicable EBITDA (Earn-Out Year ending December 31, 2014, calculated as defined below) targetsfollows: (i) An Earn if Total Revenues for such Earn-Out Year are less than $30,000,000, no Earn-Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater;will be due and payable; or (ii) An Earn if Total Revenues for such Earn-Out Payment of Two Hundred Thousand Dollars Year are greater than $30,000,000 but less than $50,000,000, an amount equal to fifteen percent ($200,000), if the EBITDA 15%) of the Business Total Revenues for such Earn-Out Year multiplied by a fraction, the trailing twelve (12) month period from numerator of which is Total Revenues for such Earn-Out Year in excess of $30,000,000 and the first anniversary denominator of Closing Date (the “Second Earn Out Period”) which is $2,500,000 or greater20,000,000; andor (iii) An Earn if Total Revenues for such Earn-Out Year are greater than $50,000,000, an amount equal to fifteen percent (15%) of Total Revenues. (c) On or before February 29, 2016, Purchaser shall pay to the Sellers, an amount based on Total Revenues for the Earn-Out Year ending December 31, 2015, calculated as follows: (i) if Total Revenues for such Earn-Out Year are less than $40,000,000, no Earn-Out Payment of Two Hundred Thousand Dollars will be due and payable; or (ii) if Total Revenues for such Earn-Out Year are greater than $200,000)40,000,000 but less than $60,000,000, if the EBITDA an amount equal to fifteen percent (15%) of the Business Total Revenues for such Earn-Out Year multiplied by a fraction, the trailing twelve numerator of which is Total Revenues for such Earn-Out Year in excess of $40,000,000 and the denominator of which is $20,000,000; or (12iii) month period from if Total Revenues for such Earn-Out Year are greater than $60,000,000, an amount equal to fifteen percent (15%) of Total Revenues. (d) No later than 30 days after Astronics Corporation files its quarterly financial statements for a quarter of an Earn-Out Year with the second anniversary Securities and Exchange Commission, Purchaser will provide a reasonably detailed breakdown of all of Purchaser’s and Astronics Corporation’s (including any Subsidiaries’) revenues includable in Total Revenues to Sellers in a form that will enable Sellers to reasonably estimate the amount of the Closing Date potential Earn-Out Payment attributable to such quarter. Purchaser shall deliver to the Sellers a computation (the “Final Earn Earn-Out Period” and together with the Initial Earn Out Period Statement”) of Total Revenue and the Second Earn portion of the Earn-Out, if any, attributable to such period (an “Earn-Out PeriodPayment”) at the time it makes the Earn-Out Payment; provided, however, if no Earn-Out Payment is payable with respect to an Earn-Out Year, such Earn-Out Statement will be delivered no later than the last day of February of the year immediately following such Earn-Out Year. Unless within twenty (20) days after receipt of such computation, the “Earn Sellers deliver written notice to the Purchaser setting forth any and all items of disagreement relating to such computation, the computation will be conclusive and binding on the Sellers. Such 20-day period shall be tolled while Sellers are waiting to receive any work papers or other information reasonably requested by Sellers which were used by the Purchaser or its Affiliates in connection with their preparation of the Earn-Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greaterStatement. (be) Within ninety (90) days If the Sellers deliver a dispute notice within such 20-day period, as adjusted, following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement receipt of the EBITDA Earn-Out Statement, the Purchaser and the Sellers shall use commercially reasonable efforts to resolve their differences for a period of ten (10) days. If the Purchaser and the Sellers are unable to resolve their differences within such period, the dispute shall be resolved by the Independent Accountants. The Purchaser and the Sellers will request that the Independent Accountants render a determination as to the computation of the Business for such Earn Earn-Out Period (the “Earn Out Statement”). Seller shall have Payment within thirty (30) days after their retention, and the Purchaser and the Sellers will cooperate fully with the Independent Accountants so as to facilitate a final determination as quickly and as accurately as possible. In making such resolution, the Independent Accountants will consider only those issues, items or amounts in the Earn-Out Statement as to which the Sellers have disagreed in writing in the aforementioned dispute notice. The Independent Accountants’ final determination (the “Final Earn-Out Report”) for any given Earn-Out Year will be in writing and will be binding on the Purchaser and the Sellers. The fees and expenses of the Independent Accountants will be paid by the Purchaser and the Sellers in the same proportion as the dollar amount of the determination in such party’s favor reflected in the Final Earn-Out Report bears to the total dollar amount of all disputed items. In the event that any amount is payable as the Earn-Out Payment under this Section 2.7(e), the Purchaser will pay such amount by wire transfer of immediately available funds to an account designated by the Sellers as soon as reasonably practicable but in no event later than five Business Days following the receipt of the Earn Final Earn-Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the BuyerReport. (cf) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Any Earn-Out Payments shall be earned or paid to which the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued Sellers are entitled to Seller under this Agreement Section 2.7 shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue bear simple interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) 6% per annum, computed annum commencing on March 1st of the basis of a 360 day year immediately following the applicable Earn-Out Year for the actual number of days elapsedwhich such Earn-Out Payment is due. Any accrued Such interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything payable to the contrary hereinSellers in immediately available funds upon demand. In addition, Buyer the Sellers shall only make payments be promptly reimbursed from the Purchaser for any and all costs or expenses of any nature or kind whatsoever (including, but not limited to, all attorneys’ fees) incurred in seeking to Seller under collect such unpaid Earn-Out Payments or to enforce the provisions of this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement2.7. (eg) For purposes of this Agreement, “EBITDA” shall mean The Purchaser agrees to act in good faith and in a manner consistent with the earnings before interest, income taxes, depreciation and amortization intention of the Business, for Parties such that the applicable fiscal Sellers have a reasonable opportunity to earn the full Earn-Out. It is the Parties’ expectation that during the period ended, determined in accordance with GAAP. For purposes of calculating the Earn-Out Paymentthe Business shall be managed and operated in a manner that is substantially consistent with past practice. Notwithstanding anything in this Agreement to the contrary, (i) in no event will the Purchaser be required to enter any line of business in which the Sellers were not engaged prior to the Closing Date (a “New Business Line”), including but not limited to the transmission of content to and from aircraft and (ii) as to any New Business Line, Purchaser reserves the right at all times and in all situations to pursue, or not pursue a New Business Line in its sole discretion, based on its sole judgment, including but not limited to its determination that not pursuing the New Business Line is in Purchaser’s or any of its Affiliate’s best interests, even if those interests conflict with the specific interests of the Sellers. Purchaser shall have no obligation whatsoever to pursue any New Business Line, it does not wish to, and the Parties agree that the Purchaser’s judgment in such matters is final. (h) If in any Earn-Out Year there is a sale of substantially all of the assets of Purchaser to a third party, and the provisions of this Section 2.7 are not binding upon the acquiror in such an asset sale by operation of Law or are not expressly assumed by the acquiror in such asset sale (an “Asset Sale”), the Management Fee described applicable Earn-Out Payment in the Earn-Out Year in which such a transaction occurs, notwithstanding any other provision of this Section 4.8 2.7 to the contrary, will be equal to the sum of a pre-Asset Sale Earn-Out Payment amount and a post-Asset Sale Earn Out payment amount, calculated as follows: (i) The pre-Asset Sale Earn-Out Payment amount will be calculated in accordance with Section 2.7 (b) or (c) as applicable, except (A) Total Revenues shall be added back to increase earnings and not be treated as an expense mean Total Revenues for such Earn-Out Year through the date of the BuyerAsset Sale and (B) the dollar thresholds provided under Subsections 2.7(b) and (c), as applicable, will be reduced to an amount equal to such dollar threshold amount multiplied by a fraction the numerator of which is the total number of days in the Earn-Out Year through the closing date of the Asset Sale and the denominator of which is the total number of days in the Earn-Out Year (the “Pre-Asset Sale Fraction”); and (ii) if the Asset Sale occurs in the 2014, the post-Asset Sale Earn-Out Payment will be equal to the sum of (A) fifteen percent (15%) of the product of (x) $68,000,000 multiplied by (y) one minus the Pre-Asset Sale Fraction, plus (B) $13,950,000; or (iii) if the Asset Sale occurs in 2015, the post-Asset Sale Earn-Out Payment will be equal to fifteen percent (15%) of the product of (A) $93,000,000 multiplied by (B) one minus the Pre-Asset Fraction.

Earn-Out. (a) Seller As further consideration for the Stock, Purchaser shall be entitled pay to receive Owner and Beneficial Owner, on the following payments (eachterms and subject to the conditions set forth in this Section 2.08, an amount (the “Earn Earn-Out Payment”) equal to (x) 2021 EBITDA, multiplied by (y) the Earn-Out Multiplier. If the Earn-Out Multiplier is 1.50, the Earn-Out Payment shall consist of cash equal to the extent 2021 EBITDA multiplied by 1.15 and a number of shares of Parent Common Stock equal to the Business achieves 2021 EBITDA, multiplied by 0.35, divided by the Earn-Out Price, rounded to the nearest whole share. If the Earn-Out Multiplier is 2.0, the Earn-Out Payment shall consist of cash equal to the 2021 EBITDA multiplied by 1.50 and a number of shares of Parent Common Stock equal to the 2021 EBITDA multiplied by 0.5, divided by the Earn-Out Price, rounded to the nearest whole share. The shares of Parent Common Stock to be issued pursuant to this Section 2.08 will be “restricted securities” under applicable EBITDA (U.S. federal and state securities Laws when issued. The Company shall use commercially reasonable efforts to register such shares of Parent Common Stock with the SEC and qualify such shares of Parent Common Stock by state authorities as defined below) targets:soon as practicable after issuance. (ia) An Earn The Earn-Out Payment of Two Hundred Thousand Dollars ($200,000shall be paid in accordance with the Payment Waterfall no later than February 10, 2022, subject to Section 2.08(b). No later than the date the Earn-Out Payment is required to be paid pursuant to this Section 2.08(a), if the EBITDA of the Business for the trailing twelve (12) month period from the Closing Date Purchaser shall cause to be prepared and delivered to Owner a statement (the “Initial Earn Out Period”) is $2,500,000 or greater; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greater. (b) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Earn-Out Statement”). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the setting forth Purchaser’s good faith calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of (A) 2021 EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (AB) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the Earn-Out Payment, in each case, calculated in accordance with this Section 2.08. The “Earn-Out Price” means the Management Fee described in Section 4.8 shall be added back to increase earnings and not be treated 15-Day VWAP as an expense of the Buyerdate of issuance of the shares of Parent Common Stock included in the Earn-Out Payment.

Earn-Out. (a) Seller shall The Standard Per Share Earn-Out Consideration will be entitled to receive the following payments (each, an “Earn Out Payment”) to the extent the Business achieves the applicable EBITDA (composed as defined below) targets: follows: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA one-third of the Business for shares of Acquiror Common Stock constituting the trailing twelve (12Standard Per Share Earn-Out Consideration shall be subject to the vesting and forfeiture conditions specified in Section 4.7(b)(i) month period from the Closing Date (the “Initial Earn First Target Earn-Out PeriodShares”) is $2,500,000 or greater; ), (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA an additional one-third of the Business for shares of Acquiror Common Stock constituting the trailing twelve (12Standard Per Share Earn-Out Consideration shall be subject to the vesting and forfeiture conditions specified in Section 4.7(b)(ii) month period from the first anniversary of Closing Date (the “Second Earn Target Earn-Out PeriodShares”) is $2,500,000 or greater; and ), and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA an additional one-third of the Business for shares of Acquiror Common Stock constituting the trailing twelve Standard Per Share Earn-Out Consideration shall be subject to the vesting and forfeiture conditions specified in Section 4.7(b)(iii) (12the “Third Target Earn-Out Shares”). (b) month The Standard Per Share Earn-Out Consideration shall be subject to the following vesting conditions during the five-year period from beginning on the second date that is 90 days after the Closing and ending on the fifth anniversary of the Closing Date (such period, the “Final Earn Earn-Out Period” and together with ”): (i) If, at any time during the Initial Earn Out Period and the Second Earn 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 (the date when the foregoing is first satisfied, the “Earn First Earnout Achievement Date”), the First Target Earn-Out Periods” Shares shall immediately vest and each, an “Earn Out Period”) is $2,500,000 or greaterno longer be subject to the forfeiture conditions provided in this Section 4.7 on the First Earnout Achievement Date. (bii) Within ninety (90) days following If, at any time during the end of each Earn Earn-Out Period, Buyer 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 $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 prepare immediately vest and deliver no longer be subject to Seller the forfeiture conditions provided in this Section 4.7 on the Second Earnout Achievement Date. (iii) If, at any time during the Earn-Out Period, the VWAP per share of Acquiror Common Stock at any point during the trading hours of a statement Trading Day is greater than or equal to $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. (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 EBITDA 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 Business for 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 4.7(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 Earn 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 “Earn Forfeited Shares”) and will instruct its transfer agent to transfer the Forfeited Shares. (g) For so long as any Earn-Out Statement”). Seller Share remains subject to the vesting and forfeiture conditions specified in this Section 4.7, the holder of such Earn-Out Share shall have thirty be entitled to (30i) days after receipt 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 Earn holder of such Earn-Out Statement 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 (the “Earn Out Review Period”) subject to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books 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 records during normal business hours at Buyer's offices, upon reasonable prior notice distributions and solely (y) establish an escrow into which such dividends and distributions shall be deposited and invested for purposes reasonably related the benefit of the holder of such Earn-Out Share as and to the determinations 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 the terms of EBITDA 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 resulting Earn accrual of any interest, income or earnings thereon during the term of such escrow. To the extent that such Earn-Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller Share fails to deliver an Objection Notice to Buyer vest in accordance with this Section 4.7 prior to the expiration of the Review Earn-Out Period, then the EBITDA calculation set forth any dividends or distributions paid or made in the Earn Out Statement respect thereof (and any interest, income or earnings that accrue thereon) shall be final forfeited to Acquiror for no consideration, and binding on no Person (other than Acquiror) shall have any further right with respect thereto. (h) The Parties intend for any issuance of Earn-Out Shares to be treated by the parties hereto. If Seller timely delivers Parties for all Tax purposes as an Objection Noticeadjustment to the aggregate consideration to be paid to the Company Stockholders pursuant to this Agreement, the parties shall negotiate unless otherwise required by applicable Law or pursuant to a “determination” (as defined in good faith to resolve the disputed items and agree upon the resulting amount Section 1313(a) of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) daysCode or any similar provision of U.S. state, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firmslocal or non-U.S. Tax Law). Each of the Seller, on the one hand, and the Buyerany such issuance of Earn-Out Shares is intended to comply with, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment effected in accordance with this Section 1.6with, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”)Rev. Proc. 84-42, and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement1984-1 C.B. 521. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the Earn-Out Payment, the Management Fee described in Section 4.8 shall be added back to increase earnings and not be treated as an expense of the Buyer.

Earn-Out. 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) Seller The Earn-Out for each Earn-Out Year shall be entitled to receive determined by the following payments increase, if any, in Kidz 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 (eachthe "Percentage Y/O/Y Increase"), an “Earn Out Payment”) to the extent the Business achieves the applicable EBITDA (and shall be earned and payable as defined below) targetsfollows: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business Percentage Y/O/Y Increase is less than or equal to five (5%) percent, there will be no Earn-out Payment for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Earn-Out Period”) is $2,500,000 or greaterYear; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA Percentage Y/O/Y Increase is greater than five (5%) percent but less than or equal to ten (10%) percent, the Earn-out Payment for such Earn-Out Year will equal the number of shares of Common Stock equal to the product of (i) a fraction the numerator of which is five (5%) percent and the denominator of which is the excess of the Business for the trailing twelve Percentage Y/O/Y Increase over five (125%) month period from the first anniversary percent and (ii) 25,749 shares of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greaterCommon Stock; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve Percentage Y/O/Y Increase is greater than ten (1210%) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Periodpercent, the “Earn Earn-out Payment for such Earn-Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greaterYear will be 25,749 shares of Common Stock. (b) Within ninety The Earn-Out Shares, if any, for each Earn-Out Year shall be delivered as soon as practicable, but in any event not later than sixty (9060) days following days, after the end of such Earn-Out Year. (c) On each Earn Earn-Out PeriodPayment Date, Buyer JAKKS Pacific shall prepare pay the Earn-Out, if any, for the applicable Earn-Out Year to the Agent (for the benefit and account of the 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 the Earn-Out Shares in the names of each Shareholder to the Agent, each certificate to be for the same proportion of the Earn-Out Shares for that Earn-Out Year as the proportion of 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 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 the Employme▇▇ ▇▇▇▇▇▇▇▇▇) prior to the end of the term of the Employment Agreement, JAKKS Pacific shall within ten (10)business days thereafter deliver to Seller a statement the Agent for the benefit and account of the EBITDA Shareholders 25,749 shares of Common Stock in respect of the Business then current Earn-Out Year in which such events occur in full satisfaction of the Earn-Out obligation for such Earn Earn-Out Period (the “Earn Year, and 25,749 shares of Common Stock in respect of each Earn-Out Statement”). Seller shall have Year thereafter, such delivery to occur within thirty (30) days after receipt the end of the Earn relevant subsequent Earn-Out Statement (Year, if any, provided, however, that if such termination occurs after the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration third anniversary of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller Closing under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization number of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes shares of calculating Common Stock thereafter deliverable on account of the Earn-Out Payment, shall equal the Management Fee described average number of shares of Common Stock delivered in Section 4.8 shall be added back to increase earnings and not be treated as an expense satisfaction of the BuyerEarn-Out obligation, if any, during the Earn-Out Years ending prior to such termination.

Earn-Out. (i) Buyer shall cause to be prepared income statements of Buyer for (a) Seller shall be entitled to receive the following payments calendar year ending on December 31, 2004 (each, an “Earn Out Payment”the "Initial Income Statement") to and (b) the extent the Business achieves the applicable EBITDA (as defined below) targets: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) twelve-month period from the Closing Date ending on June 30, 2005 (the “Initial Earn Out Period”) is $2,500,000 or greater; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000)"Final Income Statement" and, if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out PeriodIncome Statement, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greater. (b) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Out Statement”"Income Statements"). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement The Income Statements shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment prepared in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”)GAAP, and shall accrue interest from set forth the date on which it is determined Seller is entitled to such Earn Out Payment consolidated net revenues of Buyer and its subsidiaries generated in each Existing Company Territory that arise out of Existing Company Products and Competing Products (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, 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"). For purposes Each Income Statement shall be delivered by Buyer to the Sellers' Rep within ten (10) business days after completion of calculating the Earn-Out Paymentsame. The Income Statements shall become binding upon all parties, the Management Fee described and any disputes in respect thereof shall be resolved, as set forth in Section 4.8 shall be added back to increase earnings and not be treated as an expense 3.7(iv). Certain covenants of the Buyerparties related to the period beginning on the Closing Date and ending on June 30, 2005, are set forth in Section 7.2(h). (ii) Not later than the 30th calendar day following date on which both Income Statements have become final in accordance with Section 3.7(iv), Buyer shall: (a) if both (x) the Initial Income Statement shows Applicable Revenues for such calendar year in excess of $20,700,000 and (y) the Final Income Statement shows Applicable Revenues for such twelve-month period in excess of $22,000,000, pay to Beaumont (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 Final Income Statement; provided, however, that such payment shall in no event exceed

Earn-Out. (a) Seller shall be entitled At the earlier to receive occur of the following payments (each, an 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 “Earn Out Maximum Additional Payment”) to the extent Seller pursuant to the Business achieves the applicable EBITDA (as defined below) targets: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA calculations of the Business for the trailing twelve Additional Payment set forth in this Section 5.4 and (12b) month period from three years after the Closing Date (the “Initial Earn 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”) is $2,500,000 or greater; after Closing that results in the largest payment possible to the Seller pursuant to this Section 5.4 (the “Additional Payment”), setting forth an amount equal to the amount (such amount, the “Target Difference”) obtained by (a) the product obtained by multiplying (i) the quantity of Coal A sold, measured in tons, by Alden Resources during such Optimal Period by (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000)the amount, if any, by which the EBITDA 2010 Cost of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date Production, calculated as $103.20 per ton (the “Second Earn Out Period2010 Cost of Production”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if exceeds the EBITDA per ton Cost of the Business for the trailing twelve Production of Coal A sold by Alden Resources during such Optimal Period less (12b) month period from the second anniversary of the Closing Date $1,000,000 (the “Final Earn Earn-Out Period” 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 Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greaterMaximum Additional Payment. (b) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Out Statement”). Seller shall have thirty (30) 15 days after receipt of the Earn Out Statement (calculation of the “Earn Out Review Period”) Additional Payment, the Seller will deliver to review the Purchaser a written statement describing its questions or objections to the calculation of EBITDA for the Additional Payment (if any). If the Seller does not raise any questions or objections within such Earn Out Periodperiod, 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. During If the Review PeriodSeller 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 inspect Buyer’s books meet jointly with the Independent Accounting Firm during this period and records during normal business hours at Buyer's offices, upon reasonable prior notice to present their respective positions. The resolution of disputes by the Independent Accounting Firm and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration its determination of the Review PeriodAdditional Payment will be (i) determined in accordance with the terms of this Agreement, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”ii) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in writing and (iii) conclusive and binding upon the Earn Out Statement shall be Parties. The determination of the Additional Payment by the Independent Accounting Firm will become final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs date of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyerresolution. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal The Purchaser will make available to the product determined by multiplying 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 EBITDA Achievement Percentage review by the Seller of the calculation of the Additional Payment and (ii) the applicable Earn Out Payment for such Earn Out Period, where pendency of any dispute under Section 5.4 the “Achievement Percentage” is work papers and back-up materials used in preparing the percentage determined by dividing (A) the amount of (i) the EBITDA calculation of the Business for Additional Payment. Until any dispute under Section 5.4 is resolved, the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interestPurchaser will keep these materials in its principal business office. (d) To The Seller and the extent Seller is entitled to all or a portion Purchaser will each pay their own fees and expenses (including any fees and expenses of an Earn Out their accountants and other representatives) in connection with the determination of the Additional Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms each pay 50% of the Subordination AgreementIndependent Accounting firm’s fees. (e) For purposes of this Agreement, “EBITDA” shall mean Following the earnings before interest, income taxes, depreciation and amortization determination of the BusinessAdditional Payment under this Section 5.4 (the “Final Adjusted Payment”), for the applicable fiscal period endedPurchaser shall pay to the Seller, determined in accordance with GAAP. For purposes immediately available funds within 3 Business Days of calculating 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 Management Fee described Purchaser shall pay a portion of the proceeds from such Disposition equal to the product of (i) 50% and (ii) the Purchaser Receipts in Section 4.8 excess of the Purchaser Receipts necessary to achieve an IRR of 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 added back equal to increase earnings 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, the Purchaser shall, if reasonably requested by Seller no greater than one time every fiscal quarter, report on operational and not be treated as an expense financial matters affecting the potential amount of the BuyerAdditional Payment.

Earn-Out. The definitive asset purchase agreement relating to the Acquisition will contain an earn-out agreement pursuant to which Seller will be entitled to payments (the “Earn-Out Payments”) based upon the following structure: (a) Seller shall be entitled to receive an amount equal to four percent (4%) of the following payments (each, an “Earn Out Payment”) to the extent the Business achieves the applicable EBITDA Buyer’s license fee revenue (as defined belowdetermined in accordance with GAAP) targets: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period received from the Closing Date combined Global Software, Inc./Timeline, Inc. analytics business (the “Initial Earn Out PeriodCombined Analytics Business Revenue”) is $2,500,000 or greater; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from beginning on the date of Closing and ending on the first anniversary of the date of Closing Date (the “Second Earn First Earn-Out Period”); (b) is $2,500,000 or greater; and Seller shall be entitled to an amount equal to three percent (iii3%) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Combined Analytics Business Revenue for the trailing twelve (12) month period from beginning on the first anniversary of the date of Closing and ending on the second anniversary of the date of Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Earn-Out Period”); (c) is $2,500,000 or greater. Seller shall be entitled to an amount equal to two percent (b2%) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA Combined Analytics Business Revenue for the period beginning on the second anniversary of the Business for such Earn Out Period date of Closing and ending on the third anniversary of the date of Closing (the “Earn Third Earn-Out StatementPeriod”); and (d) Seller shall be entitled to an amount equal to one percent (1%) of 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”). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the The Buyer and the Seller are unable to agree that the estimate of the aggregate Earn-Out Payments is approximately $470,000, which estimate is based on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot following Combined Analytics Business Revenue targets: (after excluding their respective regular outside accounting firms). Each of w) $3,700,000 for the Seller, on the one hand, and the Buyer, on the other hand, shall bear oneFirst Earn-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing ; (Ax) the amount of (i) the EBITDA of the Business $4,700,000 for the applicable Earn Second Earn-Out Period less Period; (iiy) $1,500,000, by 6,200,000 for the Third Earn-Out Period; and (Bz) $1,000,0007,000,000 for the Fourth Earn-Out Period. For avoidance of doubt, no partial Earn Any and all Earn-Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interestpayable in arrears at quarterly intervals. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the Earn-Out Payment, the Management Fee described in Section 4.8 shall be added back to increase earnings and not be treated as an expense of the Buyer.

Earn-Out. (a) Seller shall With respect to the period of time beginning on (and including) the Closing Date and ending on (and including) May 25, 2014 (such period of time, “Year One”), the Sellers will collectively be entitled to the following amount (if any) based upon the Gross Profit for Year One (any such payment, an “Earn-Out Payment”): (i) 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 the following payments an Earn-Out Payment for such period of time that is equal to $500,000. (each, an “Earn Out Payment”b) With respect to the extent 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 Business achieves Sellers will collectively be entitled to an Earn-Out Payment (if any) based upon the applicable EBITDA (as defined below) targetsGross Profit for Year Two: (i) An Earn 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 Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater;time; or (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business Gross Profit for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) Year Two is greater than or equal to $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greater. (b) Within ninety (90) days following the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Out Statement”). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period6,708,652, then the EBITDA calculation set forth in the Earn Out Statement shall Sellers will collectively be final and binding on the parties hereto. If Seller timely delivers entitled to receive an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Earn-Out Payment for the applicable Earn Out Period. If the parties are unable such period of time that is equal to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer$500,000. (c) To the extent the EBITDA For purposes of the Businessthis Section 1.6, as finally determined pursuant to Section 1.6(b) “Gross Profit” will be calculated by Buyer in accordance with Buyer’s accounting methods, policies, practices and procedures and means, for any each applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000year (e.g., Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying Year One and Year Two), (iy) the EBITDA Achievement Percentage revenues received by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less services performed by the Business during such year, minus (iiz) $1,500,000, the costs incurred by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid the Business with respect to the extent services performed by the EBITDA Business during such year, which costs will include the temporary payroll of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes onlypersons performing the services, if temporary payroll taxes, temporary benefits, fees and costs associated with the EBITDA for Patient Protection and Affordable Care Act (also referred to as the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000Healthcare Reform Act), exclusive of interestand workers’ compensation insurance costs (including losses) associated with the temporary payroll. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the Each Earn-Out Payment, if any, shall be paid by Buyer to the Management Fee described Sellers, in the amounts and to the names and account(s) specified in Schedule 1.5, within 60 days of the last day of the applicable year (e.g., Year One and Year Two) for which such Earn-Out Payment is calculated; provided, that the conditions for payment of such Earn-Out Payment as set forth in this Section 1.6 have been satisfied and subject to the setoffs rights in Section 4.8 5.5; and provided, further, that any dispute as to the applicable Earn-Out Payment has been resolved pursuant to Section 1.6(e). For each fiscal month during Year One and Year Two, Buyer agrees to deliver to the Sellers, within 30 days after the end of such fiscal month, a statement showing the calculation of the Gross Profit (each, a “Gross Profit Statement”) for such fiscal month and the cumulative Gross Profit for the applicable year that includes such fiscal month. The Gross Profit Statement covering Year One or Year Two, as applicable, shall be added back referred to increase earnings and not be treated herein as an expense of the Buyer“Annual Gross Profit Statement”.

Earn-Out. (a) Independent of any amounts paid by Buyer to Seller shall be entitled under Section 2.2 hereof, the Parties intend to receive provide for the following payments (each, an “Earn Out Payment”) possible payment by the Buyer of additional consideration to the extent Seller based on the Business achieves the applicable EBITDA (as defined below) targets: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA financial performance of the Business for GMC Program and the trailing twelve (12) month period from Healthy Families Program as operated by the Buyer during the 36 months following the Closing Date (the “Initial Earn Out PeriodEarn-Out”) is $2,500,000 or greater; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greater. (b) Within ninety (90) days following The Seller’s Earn-Out shall be based on the end of 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 Earn Out Period, Buyer shall prepare and deliver to Seller determined in a statement of the EBITDA of the Business for such Earn Out Period manner consistent with Buyer’s historical ordinary course practices (the “Earn Out StatementGross Margin Amount”). Seller The Gross Margin Amount shall have thirty be measured over the twelve-month period immediately following the Closing Date, and over the next two successive twelve-month periods (30) days after receipt of the Earn each such twelve-month measuring period being referred to herein as an “Earn-Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To If the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for Gross Margin Amount during any applicable Earn Earn-Out Period is less than $2,500,000 but greater than 8,800,000, then the Buyer shall not pay the Seller any Earn-Out payment for that Earn-Out Period. If the Gross Margin Amount equals or exceeds $1,500,0008,800,000 during the applicable Earn-Out Period, then the Buyer shall pay a partial Earn Out Payment to the Seller in an amount equal to fifteen percent (15%) of the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment Gross Margin Amount for such Earn Earn-Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To In no event shall the extent aggregate Earn-Out payments paid by the Buyer to the Seller is entitled exceed $3,500,000. In the event the aggregate Earn-Out payments to all the Seller have equaled $3,500,000, or a portion of an Earn in the event that 36 months have elapsed since the Closing Date, no further Earn-Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) payments shall be paid on made by the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything Buyer to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination AgreementSeller. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization Within 90 days of the Businessend of each applicable Earn-Out Period, the Buyer shall deliver to the Seller a written calculation of the Earn-Out payment, if any, for the applicable fiscal period endedEarn-Out Period, determined in accordance together with GAAP. For purposes a check representing the amount of calculating the Earn-Out Paymentpayment, if any. The Buyer shall also give reasonable access to the Seller and its accountants and financial consultants, upon reasonable notice, to review the work papers and calculations used by the Buyer in its determination of the Earn-Out payment, including but not limited to review of historical and current incurred but not reported calculations. (f) If the Seller disputes the Buyer’s calculation of the Earn-Out payment, the Management Fee described Seller shall so notify the Buyer in Section 4.8 shall be added back to increase earnings and not be treated as an expense 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 payment within ten days. If the Parties are unable to resolve their dispute, the Parties shall then submit the matter to a mutually agreed-upon accounting firm (“Accounting Firm”), 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. Annual cash payments to the MGR Shareholders in the aggregate maximum amount of $17 million may be earned by the MGR Shareholders (athe "Earn-Out") Seller 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 the MGR Shareholders upon the completion of combined supplemental financial statements of the Companies derived from the audited consolidated financial statements of Stonepath for each of the 2002, 2003, 2004 and 2005 calendar years (the "Earn-Out Financial Statements"). The Earn-Out Financial Statements shall be entitled to receive completed concurrently with and as a part of the following 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 Financial Statements, and the Earn-Out payments and computations of the Earn-Out due thereunder, be delivered and remitted (each, an “Earn Out Payment”) to the extent the Business achieves the applicable EBITDA (as defined below) targets: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” Shareholders' Agent and together its counsel in accordance with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”notice provisions set forth in Section 13.5 of this Agreement) is $2,500,000 or greater. (b) Within later than ninety (90) days following the after such applicable calendar year-end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Out "Year-End Statement”"). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (ci) Payment of each annual installment of the Earn-Out 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 2002 calendar year in connection with the 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 EBITDA of reported combined net income before Taxes falls below $6.0 million (the Business, as finally determined pursuant to Section 1.6(b"Earn-Out Shortfall") for any applicable Earn Earn-Out Period is less than $2,500,000 but greater than $1,500,000year, Buyer shall pay the Earn-Out payment with respect to that Earn-Out year will be reduced on a partial Earn Out Payment to Seller in an amount equal dollar-for-dollar basis to the product determined by multiplying 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 (iwhether before or after the Earn-Out year with respect to which the Earn-Out Shortfall has occurred) exceeds $6.0 million, the EBITDA Achievement Percentage by amount of such excess combined net income before Taxes shall be applied to reduce such Earn-Out Shortfall;) provided that the amount of any such excess so used shall not be available for further application pursuant to this sentence. Solely for the 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 (ii) the applicable Earn Out Payment for such Earn "Earn-Out Period, where the “Achievement Percentage” is the percentage determined by dividing ") (A) the amount of Companies will continue to be operated (iincluding structure and cost base) in a manner substantially similar in all material respects to the EBITDA operations of the Business for Companies under the applicable Earn Out Period less (ii) $1,500,000Shareholders prior to the Closing Date, by and (B) $1,000,000. For avoidance of doubtany material changes to corporate operations, no partial Earn Out Payments shall structure or cost base will not be earned or paid to undertaken without the extent the EBITDA prior written consent of the Business for Shareholders' Agent, provided, in the event of any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years departure from the Closing Date requirements of (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment A) or (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(bB) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the any Earn-Out Paymentyear, as the Management Fee described in Section 4.8 shall be added back to increase earnings and not be treated as an expense of sole remedy (other than the Buyer.proviso which immediately

Earn-Out. (a) Seller In addition to the Aggregate Closing Date Consideration, the Interest Holders shall be entitled to receive additional consideration from the following payments Parent or the Company as follows in this Section 2.14 (each, an the “Earn Earn-Out Payment”) to the extent the Business achieves the applicable EBITDA (as defined below) targets:): (ia) An Earn For the period beginning on July 1, 2011, and ending on July 1, 2012, and each of the four (4) succeeding twelve-month periods beginning on July 1 thereafter (the “Earn-Out Payment Term” and each year of Two the Earn-Out Term an “Earn-Out Year”), the Interest Holders shall be entitled to earn an amount equal to 25% of Pre-Tax Profit that exceeds Seventeen Million Five Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (1217,500,000.00) month period from the Closing Date (the “Initial Earn Yearly Earn-Out PeriodPayment”) is $2,500,000 or greater; (ii) An Earn ); provided that any Yearly Earn-Out Payment of Two Hundred Thousand shall not exceed Eight Million Dollars ($200,000), if 8,000,000.00) in the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date aggregate (the “Second Earn Yearly Earn-Out PeriodCap”) ). If it is $2,500,000 or greater; and finally determined that a Yearly Shortfall has occurred, Parent shall pay to the Interest Holders (iii) An Earn simultaneously with the payment of the Yearly Earn-Out Payment of Two Hundred Thousand Dollars ($200,000)Payment, if any) the EBITDA Yearly Excess (if any) from any or all previous Earn-Out Years (to the extent not already paid to the Interest Holders) in an amount equal to such Yearly Shortfall. If it is finally determined that a Yearly Excess has occurred, Parent shall pay to the Interest Holders (simultaneously with the payment of the Business for Yearly Earn-Out Payment, if any) such Yearly Excess in an amount equal to the trailing twelve aggregate Yearly Shortfall from any previous Earn-Out Year (12) month period from to the second anniversary of extent not already paid to the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greaterInterest Holders). (b) Within ninety (90) days following after each twelve-month period in the end of each Earn Earn-Out PeriodTerm, Buyer Parent shall in good faith prepare (or cause to be prepared) and deliver to Seller the Interest Holder Representative a statement of report setting forth the EBITDA of the Business Pre-Tax Profit for such Earn Out Period period (the “Earn Out StatementPre-Tax Profit Report”), together with worksheets and data that support the determination of the Pre-Tax Profit for such period and any other information that the Interest Holder Representative may reasonably request in order to verify the Pre-Tax Profit. Seller The Pre-Tax Profit Report and the Pre-Tax Profit for the twelve-month period reflected thereon, shall have be binding upon the Interest Holder Representative, Stockholders and Parent upon the approval of such Pre-Tax Profit Report by the Interest Holder Representative or the failure of the Interest Holder Representative to object in writing within thirty (30) days after receipt of thereof by the Earn Out Statement (Interest Holder Representative. If the “Earn Out Review Period”) to review Interest Holder Representative does not agree with the Pre-Tax Profit Report and the calculation of EBITDA for such Earn Out Period. During the Review PeriodPre-Tax Profit stated thereon, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA Parent and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm Interest Holder Representative cannot mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firmsame, they shall select a nationally recognized accounting firm then within forty-five (45) days following receipt by lot (after excluding their respective regular outside accounting firms). Each the Interest Holder Representative of the SellerPre-Tax Profit Report, on the one hand, Parent and the BuyerInterest Holder Representative shall engage the Neutral Accountant to resolve such dispute. The Neutral Accountant shall review the Pre-Tax Profit Report and, on the other handwithin ten (10) Business Days of its appointment, shall bear one-half of the costs make any adjustments necessary thereto, and, upon completion of such accounting firm. The decision of review, such Pre-Tax Profit Report and the accounting firm shall be deemed final and conclusive and Pre-Tax Profit as determined by the Neutral Accountant shall be binding upon the Seller Interest Holder Representative, the Stockholders and Parent. The fees and expenses of the BuyerNeutral Accountant shall be borne by the parties in proportion to the amounts by which their proposals differed from the Neutral Accountant’s final determination. In connection with the resolution of any dispute, each party (the Stockholders on one hand and Parent on the other) shall pay its own fees and expenses, including legal, accounting and consultant fees and expenses. (c) To Subject to Section 2.14(g), for each Earn-Out Year, the extent Yearly Earn-Out Payment, if any, shall be paid to the EBITDA Interest Holder Representative, on behalf of the BusinessStockholders, and (at the direction within five (5) Business Days of the final determination of the Pre-Tax Profit for the applicable Earn-Out Year in accordance with Section 2.14(a) and Section 2.14(b). (d) None of Parent, the Surviving Company, nor any of their respective Affiliates shall take any action primarily intended to interfere with the ability of the Company and its Subsidiaries to maximize the Earn-Out Payments. Parent agrees that from the Effective Time through the end of the Earn-Out Term, Parent shall, and shall cause the Surviving Company, as finally determined pursuant applicable, to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) cause the EBITDA Achievement Percentage by business activities and operations of the Surviving Company and its Subsidiaries to be accounted for separately from any other business activities and operations of Parent and to maintain such books and records with respect thereto as shall be necessary to carry out the provisions of this Agreement, (ii) not enter into any contract that specifically prohibits (except upon the occurrence of a default or an event of default, and then only for so long as such default or event of default is continuing) Parent or the Surviving Company from paying a Yearly Earn-Out Payment or any Yearly Excess, and (iii) provide the business with adequate working capital; provided, however, that nothing in this Section 2.14(d)(iii) shall be interpreted as prohibiting the Surviving Company (or any of its Subsidiaries) from entering into loan or similar credit arrangements in the ordinary course of business. (e) None of Parent’s or its Affiliates’ existing credit agreements, lines of credit, loans or similar arrangements contain a specific prohibition (except upon the occurrence of a default or an event of default, and then only for so long as such default or event of default is continuing) against payment of a Yearly Earn-Out Payment or any Yearly Excess. Parent represents and warrants that as of the date hereof no event of default has occurred and is continuing under any such credit arrangements that would restrict the payment of a Yearly Earn-Out Payment or any Yearly Excess. (f) In the event a Yearly Earn-Out Payment or Yearly Excess is due but not paid (for any reason other than the express right of offset set forth in Section 2.14(g)), the amount due shall accrue interest at a rate of four percent (4%) per annum. (g) Parent may elect to set off against (i) any Yearly Earn-Out Payment earned but not yet paid any payments, if any, due from the Interest Holders in accordance with Sections 6.07, 6.08; and (ii) the applicable Earn amount of any Remaining Payment Obligations owed pursuant to Section 2.13(d)(iii); provided, however, that in the case of any offset pursuant to Section 2.14(g)(i), Parent shall (x) first have exhausted its right of offset against the full amount of the Adjusted Indemnity Holdback Amount, (y) not be permitted to offset any amounts against the Yearly Earn-Out Payment for such Earn Payments in excess of the Earn-Out Period, where Indemnity Cap and (z) not be permitted to offset any amounts against the “Achievement Percentage” is the percentage determined by dividing Yearly Earn-Out Payments that relate to or are in connection with (A) the amount of (i) the EBITDA projects of the Business for general contracting division of the applicable Earn Out Period less (ii) $1,500,000, by Company and its Subsidiaries and (B) $1,000,000. For avoidance Nagelbush Mechanical, Inc. (h) The Parties agree to treat the Earn-Out Payments as additional consideration paid for the purchase of doubtCompany Common Stock pursuant to this Agreement for all applicable Tax purposes, and no partial Party shall take a position on any Tax Return or other filings, or its books and records, that is inconsistent with this treatment, unless required by a change of Law effective after the date of this Agreement or a determination of a Governmental Authority that is final, provided that the Earn Out Payments shall be earned or paid to treated as interest as required by Code Section 1274 (and the extent the EBITDA other applicable provisions of the Business for any Code or applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if Tax Laws) using the EBITDA for discount rate to determine the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller imputed interest under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interestCode Section 1274. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the Earn-Out Payment, the Management Fee described in Section 4.8 shall be added back to increase earnings and not be treated as an expense of the Buyer.

Earn-Out. (a) Seller shall In addition to the Purchase Price, the Stockholders will be entitled to receive the following earn-out payments (eachthe "Earn-Out Payments") as additional purchase price: (a) The Buyer shall pay the Stockholders the amount, an “Earn Out Payment”if any, (the "Earn-Out") equal to fifty percent (50%) of the extent amount of the Business achieves Company's aggregate earnings before interest, taxes, goodwill amortization and incentive compensation under the applicable EBITDA Employment Agreements (as defined belowhereafter) targets: (iexcluding any corporate allocations by Buyer, except for direct services Buyer provides to the Company consistent with the Company's past practices) An Earn ("Pretax Profits") for the three year period beginning July 1, 1998, and ending June 30, 2001 (collectively, the "Earn-Out Payment of Two Hundred Thousand Dollars ($200,000Period"). All Earn-Out Payments shall be payable to each Stockholder, if the EBITDA pro rata in accordance with each Stockholder's ownership of the Business for the trailing twelve (12) month period from the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greaterShares as set forth in Schedule 3.4 hereto. (b) Within ninety (90) days As provided in Section 1.5(f), following July 1, 1999, the end of each Earn Out Period, Buyer shall prepare and deliver to Seller a statement of pay the EBITDA of the Business for such Earn Out Period Stockholders an amount (the “Earn Out Statement”). Seller shall have thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn "1999 Earn-Out Payment. Prior ") equal to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half (1/2) of fifty percent (50%) of the costs of such accounting firm. The decision Pretax Profits of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the BuyerCompany from July 1, 1998 to June 30, 1999. (c) To As provided in Section 1.5(f), following July 1, 2000, the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in the Stockholders an amount (the "2000 Earn-Out Payment") equal to the product determined by multiplying one-half (i1/2) the EBITDA Achievement Percentage by of fifty percent (ii50%) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA Pretax Profits of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes onlyCompany from July 1, if the EBITDA for the Initial Earn Out Period is $2,000,0001999 to June 30, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest2000. (d) To As provided in Section 1.5(f), following July 1, 2001, the extent Seller is entitled Buyer shall pay the Stockholders an amount (the "Final Earn-Out Payment") equal to all or a portion fifty percent (50%) of an Earn the Pretax Profits of the Company from July 1, 1998 to June 30, 2001, less the 1999 Earn-Out Payment in accordance with this Section 1.6, and less the applicable Earn 2000 Earn-Out Payment(s) (or portion thereof) shall be paid on Payment. If the date that is three (3) years from the Closing Date (the “Earn Final Earn-Out Payment Date”), and shall accrue interest from is less than the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms aggregate of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean ▇▇▇▇ ▇▇▇▇-▇▇▇ Payment plus the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the 2000 Earn-Out Payment, then the Management Fee described in Section 4.8 Stockholders shall be added back pay to increase earnings the Buyer the difference between the Final Earn-Out Payment and not be treated as an expense the aggregate of the Buyer▇▇▇▇ ▇▇▇▇-▇▇▇ Payment plus the 2000 Earn-Out 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 Payment.

Earn-Out. (a) Seller In addition to the Consideration Shares, by virtue of the Merger, each share of Target Common Stock shall be entitled converted into the right to receive receive, if and when earned, any one or more earn-out payments (collectively, the following payments “Earn-Out”) pursuant to this Section 2.6. With respect to each $5,000,000 of Net Revenue on a cumulative basis of all Target Products collectively (each, an “Earn Earn-Out PaymentMilestone”) to the extent the Business achieves the applicable EBITDA (as defined below) targets: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve Earn-Out amount shall be $500,000 (12) month period from the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Earn-Out PeriodPayment”) is ); provided, however, that the aggregate Earn-Out payable hereunder shall under no circumstances exceed $2,500,000 or greater(the “Earn-Out 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) Within From and after the first sale of Target Product and until the Earn-Out 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 following after the fiscal year end of each Earn Out Periodfor the fourth quarter ending in December (each, Buyer “Reporting Date”), the Acquiror shall prepare and deliver to Seller the Stockholder Representative a statement written statement, certified by the Acquiror’s Chief Financial Officer, of the EBITDA Net Revenue of the Business for all Target Products during such Earn calendar quarter. Each time an Earn-Out Period (the “Earn Out Statement”). Seller shall have Milestone has been achieved, within thirty (30) days after receipt of the first Reporting Date to occur after the Earn Out Statement (Milestone has been achieved, the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller Acquiror shall have the right to inspect Buyer’s books deliver and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related pay to the determinations of EBITDA and Stockholder Representative the resulting Earn Earn-Out PaymentPayment corresponding to such Earn-Out Milestone. Prior The Stockholder Representative shall distribute the Earn-Out Payment to the expiration Target Stockholders on a pro rata basis based on the Pre-Closing Ownership Percentages of the Review Period, Seller may object Target Stockholders. Acquiror and its Affiliates shall not sell or transfer the Target Product unless the purchaser or transferee is subject to the EBITDA calculation set forth on same obligation to make the Earn Earn-Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior Payments to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement shall be final Target Stockholders as Acquiror and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith its Affiliates pursuant to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Period. If the parties are unable to reach agreement within thirty (30) days, then the Parties shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyerthis Agreement. (c) To From and after the extent first sale of Target Product and until the EBITDA Earn-Out 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 paid by Acquiror as of the Businesstime of such audit is deficient, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer Acquiror shall promptly pay a partial Earn Out Payment to Seller in an the deficient amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid plus interest on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”)deficient amount, and shall accrue interest from the date on which it is determined Seller is entitled such payment was due to such Earn Out Payment (or portion thereof) the date of actual payment at a rate equal of one percent (1%) per month, or if lower, the maximum amount permitted under applicable Law. If the Earn-Out payments made by Acquiror are found to be deficient by more than five percent (5%) per annum), computed on Acquiror shall pay for all costs and expenses of Stockholder Representative associated with the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreementaudit. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the Earn-Out Payment, the Management Fee described in Section 4.8 shall be added back to increase earnings and not be treated as an expense of the Buyer.

Earn-Out. (a) Seller Subject to this Section 2.3, the Share Consideration to which the Company Shareholders are entitled under Section 2.1(b) and the consideration payable to holders of Options who receive Roll-Over Options (“Roll-Over Option Holders”) pursuant to Section 2.9(b) shall be increased (the “Earn-Out”) by up to 1,636,811 shares, in the aggregate (including the shares of Parent Common Stock subject to the Earn-Out Restricted Stock Awards to be issued under Section 2.9(c)), of Parent Common Stock and Parent Series D Preferred Stock, as applicable, representing one percent (1%) of the Fully Diluted Parent Stock immediately following the Effective Time (the “Earn-Out Amount”), if the Surviving Corporation achieves Net Advertising Revenue during the Earn-Out Period between $13,000,000 and $17,000,000. The increased consideration described in the preceding sentence shall be provided (i) to Company Shareholders, if at all, in the form of Parent Common Stock or Parent Series D Preferred Stock delivered on the date described in 2.9(d), and (ii) to Roll-Over Option Holders in the form of restricted stock described in Section 2.9(c), which shall vest, if at all, at the time described in Section 2.9(c). No additional Earn-Out Amount will be payable (or, with respect to Roll-Over Option Holders, will vest) by Parent if Net Advertising Revenue exceeds $17,000,000. If the Surviving Corporation achieves Net Advertising Revenue of $17,000,000, then the entire Earn-Out Amount will be payable to the Company Shareholders (and vest, with respect to Roll-Over Option Holders) in accordance with this Section 2.3(a). If the Net Advertising Revenue is more than $13,000,000 but less than $17,000,000, then the Company Shareholders shall be entitled to receive (and, with respect to Roll-Over Option Holders, shall vest in) an aggregate number of shares of Parent Common Stock and Parent Series D Preferred Stock, as the following payments case may be, equal to (eachA) the Earn-Out Amount multiplied by (B) the actual Net Advertising Revenue achieved in excess of $13,000,000, an “Earn Out Payment”divided by (C) $4,000,000 (rounded up to the extent the Business achieves the applicable EBITDA (as defined below) targets: (i) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000nearest whole number), if the EBITDA . The maximum potential allocations for each Company Shareholder and Roll-Over Option Holder of the Business for the trailing twelve (12) month period from Earn-Out Amount shall be set forth in the Closing Date (the “Initial Earn Out Period”) is $2,500,000 or greater; (ii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the first anniversary of Closing Date (the “Second Earn Out Period”) is $2,500,000 or greater; and (iii) An Earn Out Payment of Two Hundred Thousand Dollars ($200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the second anniversary of the Closing Date (the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greaterConsideration Certificate. (b) Within ninety (90) days following of the end of each Earn the Earn-Out Period, Buyer Parent shall (i) prepare and deliver to Seller a statement of the EBITDA of the Business for such Earn Out Period (the “Earn Earn-Out Statement”). Seller shall have ) setting forth the Net Advertising Revenue and (ii) deliver or cause to be delivered the Earn-Out Statement, together with a summary of the basis for the determination of the Net Advertising Revenue, to the Company Shareholders’ Representative. (c) If the Company Shareholders’ Representative objects to the calculations set forth in the Earn-Out Statement, then within thirty (30) days after receipt the delivery to the Company Shareholders’ Representative of the Earn Earn-Out Statement Statement, the Company Shareholders’ Representative shall deliver to the Company and Parent a written notice (the “Earn Earn-Out Review PeriodNotice of Objection”) to review the calculation of EBITDA for such Earn Out Period. During the Review Period, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection (an “Objection Notice”) to Buyer, which shall specify the disputed items and shall describe describing in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior Company Shareholders’ Representative’s objections to the expiration Earn-Out Statement and setting forth the calculation determined by the Company Shareholders’ Representative to be correct. Unless the Company Shareholders’ Representative delivers an Earn-Out Notice of Objection to Parent within thirty (30) days after Parent’s delivery of the Review PeriodEarn-Out Statement, then the EBITDA calculation set forth in the Earn Earn-Out Statement shall be final and binding on the parties heretofor all purposes hereunder. If Seller timely the Company Shareholders’ Representative gives the Earn-Out Notice of Objection to the Company and Parent within such 30-day period, the Company and the Company Shareholders’ Representative will resolve such dispute in accordance with Section 2.4 below. (d) Within ten (10) days of (i) the delivery by Parent of an Earn-Out Statement which provides that Net Advertising Revenue exceeds $13,000,000 and either (A) the Company Shareholders’ Representative’s written agreement to such statement or (B) the expiration of the period during which the Company Shareholders’ Representative may provide an Earn-Out Notice of Objection pursuant to Section 2.3(c) without his having providing such notice, or (ii) if the Company Shareholders’ Representative delivers an Objection Earn-Out Notice of Objection, a resolution of any dispute regarding the calculation of Net Advertising Revenue in accordance with Section 2.4 below, and such resolution provides that Net Advertising Revenue exceeds $13,000,000, Parent shall deliver to the Company Shareholders’ Representative, for distribution to the Company Shareholders, stock certificates representing the shares of Parent Common Stock or Parent Series D Preferred Stock, as applicable, issuable to such Company Shareholders pursuant to this Section 2.3, allocated in accordance with the Closing Consideration Certificate. In the event that, after the Effective Time but prior to the end of the Earn-Out Period, Parent proposes to engage in either (i) an underwritten public offering of Parent Common Stock pursuant to a registration statement filed with the Securities and Exchange Commission, or (ii) a Liquidation Event (as defined in the Parent Amended and Restated Certificate of Incorporation) (in each case, an “Extraordinary Transaction “), Parent may, at its sole option, notify the Company Shareholders’ Representative in writing of such Extraordinary Transaction and Parent’s intention to accelerate the payment of the Earn-Out Amount, if any, prior to such transaction (the “Extraordinary Transaction Notice”). The Extraordinary Transaction Notice shall set forth the expected Net Advertising Revenue, as determined by Parent. The Company Shareholders’ Representative shall have twenty (20) days after delivery of such notice to object to the Net Advertising Revenue set forth in such notice. If the Company Shareholders’ Representative disagrees with the amount of expected Net Advertising Revenue set forth in the Extraordinary Transaction Notice, Parent and the parties Company Shareholders’ Representative shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of expected Net Advertising Revenue during the EBITDA and the Earn Out Payment for the applicable Earn Earn-Out Period. If the parties are unable to reach agreement agree on the expected Net Advertising Revenue within thirty (30) days, then days after the Parties shall forthwith refer date of Parent’s delivery of the dispute to a nationally recognized accounting firm mutually agreeable Extraordinary Transaction Notice to the Seller Company Shareholders’ Representative, Parent and the Buyer Company Shareholders’ Representative shall submit for resolution, with arbitration the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each calculation of the Seller, on the one hand, and the Buyer, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. expected Net Advertising Revenue to an Accounting Firm (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000defined below), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”2.4(b), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the Earn-Out Payment, the Management Fee described in Section 4.8 shall be added back to increase earnings and not be treated as an expense of the Buyer.

Earn-Out. (a) Seller Subject to Section 3.3(b), as additional contingent deferred consideration, the Stockholders collectively (and with respect to each individual Stockholder, in accordance with its respective Pro Rata Shares) shall be entitled eligible to receive the following payments after Closing up to an aggregate amount of $1,500,000 (each, an “Earn Earn-Out Payment” and collectively, the “Earn-Out Payments”) to comprised of the extent the Business achieves the applicable EBITDA (as defined below) targetsfollowing two potential payments: (i) An Earn Out Payment of Two Hundred Thousand Dollars (aggregate amount equal to $200,000), if the EBITDA of the Business for the trailing twelve (12) month period from the Closing Date 300,000 (the “Initial Earn First Earn-Out PeriodPayment”) upon satisfaction in the good faith determination of the Buyer (subject to the dispute resolution provision set forth in Section 3.3(b)), of the First Earn-Out Criteria by no later than the date that is $2,500,000 or greater;four (4) months immediately following authorization by the Chief Executive Officer of Parent to commence the Charleston Plant Expansion Phase I (the “First Earn-Out End Date”). (ii) An Earn aggregate amount equal to $1,200,000 (the “Second Earn-Out Payment Payment”) upon satisfaction in the good faith determination of Two Hundred Thousand Dollars the Buyer ($200,000subject to the dispute resolution provision set forth in Section 3.3(b)), if the EBITDA of the Business for Second Earn-Out Criteria by no later than the trailing date that is twelve (12) month period from months immediately following authorization by the first anniversary Chief Executive Officer of Closing Date Parent to commence the Charleston Plant Expansion Phase II (the “Second Earn Earn-Out PeriodEnd Date” and each of the First Earn-Out End Date and the Second Earn-Out End Date, an “Earn-Out End Date”). Upon reasonable advanced written request by the Stockholders’ Representative, Buyer agrees to provide periodically reasonable updates on the progress of each Earn-Out Criteria to the Stockholders’ Representative. If so earned, each Earn-Out Payment will be satisfied by or on behalf of Buyer, at Buyer’s sole option, in any of the following: (i) cash in accordance with written instructions from the Stockholders, (ii) shares of Buyer Common Stock (the “Earn-out Shares”) is $2,500,000 in book-entry form through DTC for the benefit of the Stockholders or greater; and (iii) An Earn some combination of such cash and Earn-Out Payment of Two Hundred Thousand Dollars Shares; provided that, with respect to clauses ($200,000ii) and (iii), if each Stockholder provides the EBITDA DTC Information to the Buyer and makes the Private Placement Representations in a duly executed certificate in the form attached hereto as Exhibit C. Notwithstanding anything contained herein, in order for a Stockholder to be eligible to receive its Pro Rata Share of the Business Earn-Out Payment, such Stockholder shall not be in breach of any representation or warranty or covenant or obligation under the Voting and Support Agreement, Letter of Transmittal, any employment arrangement or consulting agreement or any other agreement entered into with Buyer or any of its Affiliates (including the Company and its Subsidiaries). Notwithstanding anything contained herein, if any force majeure (including, acts of God; labor disputes; acts of civil or military authority or governmental action) occurs after authorization by the Chief Executive Officer of Parent to commence the Charleston Plant Expansion Phase I or the Charleston Plant Expansion Phase II that effects in any material adverse respect the ability of the Earn-Out Criteria to be satisfied under Section 3.3(a)(i) or (ii) prior to the applicable Earn-Out End Date, such Earn-Out End Date will be automatically extended for the trailing twelve (12) month period from the second anniversary of the Closing Date (continuation of such material adverse impact of the “Final Earn Out Period” and together with the Initial Earn Out Period and the Second Earn Out Period, the “Earn Out Periods” and each, an “Earn Out Period”) is $2,500,000 or greaterforce majeure. (b) Within ninety (90) days following If any Earn-Out Payment has not been previously satisfied, as soon as practicable after the end of each Earn the applicable Earn-Out PeriodEnd Date, Buyer shall prepare and deliver provide the Stockholders’ Representative, by notice in writing, with its determination with respect to Seller a statement of whether or not the EBITDA of the Business for such Earn applicable Earn-Out Period Criteria have been satisfied (the “Earn Earn-Out StatementPayment Determination”), including a reasonable explanation of the basis for such determination. Seller If the Stockholders’ Representative has not objected to such Earn-Out Payment Determination by written notice to Buyer within fifteen (15) Business Days of its receipt, such Earn-Out Payment Determination shall have be deemed the “Final Earn-Out Payment Determination” and shall be final, binding and conclusive for all purposes hereunder. If a written objection notice is timely delivered by the Stockholders’ Representative, the parties shall use their commercially reasonable efforts to reconcile such objections for a period of not less than thirty (30) days after receipt of the Earn Out Statement (the “Earn Out Review Period”) to review the calculation of EBITDA for such Earn Out Period. During the Review Perioddays, Seller shall have the right to inspect Buyer’s books and records during normal business hours at Buyer's offices, upon reasonable prior notice and solely for purposes reasonably related any mutual agreement as to the determinations of EBITDA and the resulting Earn Earn-Out Payment. Prior to the expiration of the Review Period, Seller may object to the EBITDA calculation set forth on the Earn Out Statement by delivering a written notice of objection Payment Determination achieved during such thirty (an “Objection Notice”30) to Buyer, which shall specify the disputed items and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Objection Notice to Buyer prior to the expiration of the Review Period, then the EBITDA calculation set forth in the Earn Out Statement day period shall be final final, conclusive and binding on the parties hereto. If Seller timely delivers an Objection Notice, the parties shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the EBITDA and the Earn Out Payment for the applicable Earn Out Periodbinding. If the parties are unable to reach agreement within resolve such dispute in spite of their respective good faith commercially reasonable efforts for such thirty (30) daysdays period, then either Buyer or the Parties shall forthwith refer Stockholders’ Representative may submit the items in dispute for determination to a an independent party of nationally recognized accounting firm expertise in the construction and operation of industrial hydrogen liquefaction operations mutually agreeable to the Seller and the Buyer for resolution, with the understanding that such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller Stockholders’ Representative (the “Independent Third Party”). In such event, the determination of the Independent Third Party, which shall be limited narrowly to only such items as are unable to agree in dispute, shall be deemed final, conclusive, and binding on the choice of an accounting firmparties, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Each and which together with any other agreed elements of the Sellerdetermination shall represent the Final Earn-Out Payment Determination. The fees and expenses of the Independent Third Party shall be allocated equally between Buyer, on the one hand, and the BuyerStockholders in accordance with their respective Pro Rata Shares, on the other hand, shall bear one-half of the costs of such accounting firm. The decision of the accounting firm shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. (c) To the extent the EBITDA of the Business, as finally determined pursuant to Section 1.6(b) for any applicable Earn Out Period is less than $2,500,000 but greater than $1,500,000, Buyer shall pay a partial Earn Out Payment to Seller in an amount equal to the product determined by multiplying (i) the EBITDA Achievement Percentage by (ii) the applicable Earn Out Payment for such Earn Out Period, where the “Achievement Percentage” is the percentage determined by dividing (A) the amount of (i) the EBITDA of the Business for the applicable Earn Out Period less (ii) $1,500,000, by (B) $1,000,000. For avoidance of doubt, no partial Earn Out Payments shall be earned or paid to the extent the EBITDA of the Business for any applicable Earn Out Period is equal or less than $1,500,000. For illustration purposes only, if the EBITDA for the Initial Earn Out Period is $2,000,000, then the Earn Out Payment for the Initial Earn Out Period accrued to Seller under this Agreement shall be equal to $100,000 (i.e. 50% of $200,000), exclusive of interest. (d) To the extent Seller is entitled to all or a portion of an Earn Out Payment in accordance with this Section 1.6, the applicable Earn Out Payment(s) (or portion thereof) shall be paid on the date that is three (3) years from the Closing Date (the “Earn Out Payment Date”), and shall accrue interest from the date on which it is determined Seller is entitled to such Earn Out Payment (or portion thereof) at a rate equal to five percent (5%) per annum, computed on the basis of a 360 day year for the actual number of days elapsed. Any accrued interest on any Earn Out Payments(s) shall be accrued and paid on the Earn Out Payment Date. Notwithstanding anything to the contrary herein, Buyer shall only make payments to Seller under this Section 1.6(b) in accordance with and as permitted by the terms of the Subordination Agreement. (e) For purposes of this Agreement, “EBITDA” shall mean the earnings before interest, income taxes, depreciation and amortization of the Business, for the applicable fiscal period ended, determined in accordance with GAAP. For purposes of calculating the Earn-Out Payment, the Management Fee described in Section 4.8 shall be added back to increase earnings and not be treated as an expense of the Buyer.