Common use of Earn-Out Clause in Contracts

Earn-Out. (a) Within forty five (45) days following the end of June and December of each calendar year following Closing through the end of the second (2nd) anniversary of the Closing Date, Purchasers shall provide to Novatel a report setting forth the number of each type of Module Product sold during the respective reporting period and the gross revenue attributable to sales of each of the Module Products during such period. As soon as practicable but not later than forty five (45) days after the second (2nd) anniversary of the Closing Date, Purchasers shall deliver to Novatel a statement (the “Earn-out Revenue Statement”) setting forth the number of each type of Module Product sold during the two (2) year period immediately following the Closing, the gross revenue attributable to sales of each of the Module Products during such two (2) year period, and the aggregate gross revenue from such sales (the “Final Revenue Amount”). (b) Novatel shall have thirty (30) days from the date of receipt of the Earn-out Revenue Statement from Purchasers to dispute any amount on the Earn-out Revenue Statement, including the Final Revenue Amount, by providing written notice to Purchasers of such dispute (a “Dispute Notice”) within such thirty (30) day period. If Novatel provides Purchasers with a Dispute Notice, the parties shall cooperate in good faith to resolve such dispute as promptly as practicable and shall make available to each other and any of their respective Representatives as necessary for the review and resolution of the dispute, all relevant books, records and personnel and provide access to actual physical inventory, as reasonably requested by Purchasers and Novatel, as applicable. (c) In the event the parties are unable to resolve any dispute regarding the Final Revenue Amount, such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by an independent certified accountant agreed upon by both parties (the “Independent Accountant”) whose written determination as to the Final Revenue Amount shall be conclusive and binding on all parties. All fees and expenses charged by the Independent Accountant shall be shared equally by Purchasers, on the one hand, and Novatel, on the other hand. (d) In the event the Final Revenue Amount, as determined in this Section 1.4, is greater than $40,000,000, Purchasers shall pay to Novatel, by wire transfer of immediately available funds to an account designated by Novatel, an amount in cash equal to (i) the product of (A) the Final Revenue Amount times (B) 0.25, minus (ii) $10,000,000, within five (5) Business Days of the Final Revenue Amount being determined. In the event the Final Revenue Amount, as determined in this Section 1.4, is equal to or less than $40,000,000, no payment shall be made pursuant to this Section 1.4(d). Any payment made by Purchasers to Novatel pursuant to this Section 1.4(d) shall be deemed an adjustment to the Purchase Price.

Earn-Out. (a) Within forty five During the period beginning on the Closing Date and ending on the earlier of (45i) days following April 9, 2024, and (ii) the end of June and December of each calendar year following Closing through the end date on which all of the second Company’s obligations under the Zoetis License have been completed and discharged in full (2nd) anniversary of the Closing Date, Purchasers shall provide to Novatel a report setting forth the number of each type of Module Product sold during the respective reporting period and the gross revenue attributable to sales of each of the Module Products during such period. As soon as practicable but not later than forty five (45) days after the second (2nd) anniversary of the Closing Date, Purchasers shall deliver to Novatel a statement (the “Earn-out Revenue StatementOut Period”), Parent will, upon receipt by the Surviving Corporation of any payment pursuant to the Zoetis License from time to time, promptly pay to the Paying Agent, for distribution to the Holders (such amounts to be allocated among the Holders in accordance with each Holder’s Pro Rata Share of such amount), an amount equal to (x) setting forth 85% of such payment, less (y) the number amount, if any, of all direct expenses in excess of the Budgeted Zoetis Expenses incurred by the Surviving Corporation or Parent in connection with the performance of the Company’s obligations under the Zoetis License since the Closing Date or the calculation of the last such payment, as applicable (such net amount with respect to each type of Module Product sold during the two (2) year period immediately following the Closingsuch payment, if a positive amount, an “Earn Out Payment”, and collectively with all payments under this Section 3.07(a), the gross revenue attributable to sales of each of the Module Products during such two (2) year period, and the aggregate gross revenue from such sales (the “Final Revenue AmountEarn-Out Payments”). (b) Novatel Parent shall have thirty use commercially reasonable efforts (30after giving effect, to among other things, the business of the Surviving Corporation) days from to cause the Surviving Corporation to perform all of the Company’s obligations under the Zoetis License in such a manner as to maximize the revenues of the Surviving Corporation under the Zoetis License, provided that nothing in this Section 3.07 shall require Parent or the Surviving Corporation to make any expenditure or incur any expense in excess of the Budgeted Zoetis Expenses unless Parent determines, in good faith, that the payments reasonably expected to be received under the Zoetis License will exceed such amount of expense in excess of the Budgeted Zoetis Expenses; and provided, further, that Parent shall not be required to cause the Surviving Corporation to take any action, or omit to take any action, that would reasonably be expected to be adverse to the business of the Surviving Corporation, which, for the avoidance of doubt, would not include any expense contemplated in the Zoetis Budget and any action expressly related thereto. Promptly following the Closing, Parent shall appoint a representative of Parent or Surviving Corporation (who shall initially be Xxxx Xxxxxx), who shall liaise with Xxxxxxxx Xxxx regarding the same. (c) From and after the completion of the first full calendar month following the Closing Date, and subject to compliance with all confidentiality requirements of the Company pursuant to the Zoetis License and any related confidentiality agreements, Parent shall, or shall cause the Surviving Corporation to, deliver to the Holder Representative a monthly report within 15 Business Days of the last day of such calendar month setting out the expenses incurred by the Surviving Corporation and Parent in connection with the performance of the obligations of the Company pursuant to the Zoetis License for the period since the Closing Date or the date of receipt of the Earn-out Revenue Statement from Purchasers to dispute any amount on the Earn-out Revenue Statement, including the Final Revenue Amount, by providing written notice to Purchasers of last such dispute (a “Dispute Notice”) within such thirty (30) day period. If Novatel provides Purchasers with a Dispute Notice, the parties shall cooperate in good faith to resolve such dispute as promptly as practicable and shall make available to each other and any of their respective Representatives as necessary for the review and resolution of the dispute, all relevant books, records and personnel and provide access to actual physical inventory, as reasonably requested by Purchasers and Novatelreport, as applicable. (cd) In the event the parties are unable to resolve If at any dispute regarding the Final Revenue Amount, such dispute shall be submitted totime, and all issues having a bearing on such dispute shall from time to time, during the Earn-Out Period, Parent or the Surviving Corporation determines not to make an expenditure or incur an expense in excess of, or expected to be resolved by in excess of, the Budgeted Zoetis Expenses (an independent certified accountant agreed upon by both parties (the “Independent AccountantUnbudgeted Zoetis Expense”) whose written in accordance with Section 3.07(b), it shall promptly notify the Holder Representative in writing of such determination as and provide a reasonable, good-faith estimate of the total amount of such Unbudgeted Zoetis Expense. Neither Parent nor the Surviving Corporation shall have any liability to the Final Revenue Amount Holder Representative or any Holder for any inaccuracy or misstatement pertaining to such estimate or if the actual expenses necessary to complete the performance of the Zoetis License differ from Parent’s or the Surviving Corporation’s good-faith estimate provided to the Holder Representative pursuant to this Section 3.07(d). If, within 10 Business Days following delivery by Parent or the Surviving Corporation of a notice of an Unbudgeted Zoetis Expense as set out in this Section 3.07(d), the Holders deliver the full amount of the Unbudgeted Zoetis Expense to the Surviving Corporation, Parent will cause the Surviving Corporation to apply such amount against the Unbudgeted Zoetis Expense and shall be conclusive and binding on all parties. All fees and expenses charged by make the Independent Accountant shall be shared equally by Purchaserscorresponding expenditure or incur the corresponding expense, on the one hand, and Novatel, on the other handas applicable. (de) In Within 15 Business Days of Surviving Corporation’s receipt of any and all payments under the event the Final Revenue AmountZoetis License, as determined in this Section 1.4, is greater than $40,000,000, Purchasers shall Parent will pay or cause Surviving Corporation to pay to Novatelthe Paying Agent, for distribution to the Holders, by wire transfer of immediately available funds funds, the respective Earn-Out Payment payable under Section 3.07(a). Within 15 Business Days following the end date of the Earn-Out Period, Surviving Corporation will pay to an account designated by Novatelthe Paying Agent, an amount for distribution to the Holders (such amounts to be allocated among the Holders in cash accordance with each Holder’s Pro Rata Share of such amount), the amount, if any, equal to the sum of the following: (i) any Earn-Out Payment not previously paid out under the product prior sentence, if any, payable pursuant to Section 3.07(a); (ii) the amount, if any, by which the Budgeted Zoetis Expenses exceeded the aggregate amount actually incurred by the Surviving Corporation and Parent in the discharge of the Company’s obligations under the Zoetis License; and (iii) the amount, if any, by which any amount paid by the Holders to the Surviving Corporation or Parent in respect of any Unbudgeted Zoetis Expenses exceeded the aggregate amount of the expenses actually incurred by the Surviving Corporation and Parent in respect of such Unbudgeted Zoetis Expenses. (f) Each of the Parties agrees that (A) the Final Revenue Amount times Earn-Out Payment and the payment of the amounts considered under Section 3.07(e)(i) and (ii) shall be treated as adjustments to the Purchase Price by the Parties for Tax purposes, except to the extent otherwise required by Law, and (B) 0.25it will take commercially reasonable steps to structure the Earn-Out Payment, minus if any, and the payment of the amounts under Section 3.07(e)(i) and (ii), if any, in a tax-efficient manner, provided that any such structure shall be subject to the approval of each of the Parties. (g) If (i) any Parent Indemnitee has any claim for indemnifiable Losses pursuant to this Agreement or any Ancillary Document of which any amount remains unpaid after the 15 Business Day period set out in Section 9.06(a), or (ii) $10,000,000, Parent or any Affiliate thereof is entitled to payment from Holders in respect of any amount payable under Section 3.06(b)(ii)(B) and 11.02 of this Agreement that remains unpaid within five (5) 10 Business Days of written request therefor, then Parent shall have the Final Revenue Amount being determined. In the event the Final Revenue Amountright to withhold, as determined in this Section 1.4, is equal or to cause Surviving Corporation to withhold from any Earn-Out Payment or less than $40,000,000, no other payment shall be made otherwise payable by Parent or Surviving Corporation pursuant to this Section 1.4(d). Any payment made 3.07, and set off against the same, the amount of such unsatisfied claims in satisfaction of such portion of such claim as is represented by Purchasers to Novatel pursuant to this Section 1.4(d) shall be deemed an adjustment to the Purchase Priceamount so withheld.

Earn-Out. (a) Within forty five (45) days following 5.1 As full compensation for the end of June sale and December of each calendar year following Closing through the end assignment of the second (2nd) anniversary of Assigned Intellectual Property, K2 shall pay to the Closing DateAssignors, Purchasers shall provide to Novatel in accordance with the next sentence, annually a report setting forth the number of each type of Module Product sold during the respective reporting period and the gross revenue attributable to sales of each of the Module Products during such period. As soon as practicable but not later than forty five (45) days after the second (2nd) anniversary of the Closing Date, Purchasers shall deliver to Novatel a statement cash earn-out (the “Earn-out Revenue StatementOut”) setting forth with respect to each Product equal to the number product of each type (x) the Earn-Out Percentage for such Product and (y) the Net Revenues of Module Product sold during the two (2) year period immediately following the Closing, the gross revenue K2 attributable to sales of each such Product during the applicable year. The Earn-Out in respect of a Product shall be paid directly to the Assignor who contributed the Assigned Intellectual Property upon which such product is based; provided, that, if a Product is based upon Assigned Intellectual Property assigned by more than one Assignor, then such Earn-Out shall be apportioned among the Assignors who assigned such intellectual property in such proportion as they shall agree or, absent such an agreement, in such proportions as K2 shall reasonably determine taking into account the items assigned and the extent to which they were incorporated into the applicable Product. The Earn-Out shall be paid quarterly within thirty days of the Module end of the applicable quarter. Each year following the completion of the Company’s independent audit of its books and records, the Company shall reconcile the actual Earn-Out payments made in respect of such year and any deficiency shall be promptly paid by K2 to the applicable Assignor(s) or, in the case of an overpayment by K2, such amount shall be credited toward future Earn-Out payments due hereunder. All Earn-Out payments to be made hereunder shall be made in U.S. Dollars. Earn-Out payments for foreign sales of Products during shall be separately and distinctly accounted and determined based on the applicable currency conversion rate as of the 1st calendar day of the quarter when payment is due. 5.2 For purposes of this Agreement, the term “Earn-Out Percentage” with respect to any Product shall mean: (a) For each Product, the Earn-Out Percentage from and after the date hereof, shall be six percent (6%) until the later of (i) expiration of the last to expire of any issued patents having one or more claims covering such Product, or (ii) the date of abandonment of any patent application describing such Product, at which time the Earn-Out Percentage for such Product shall be reduced to three percent (3%) where one or more claims of an issued patent covered the Product, or two percent (2%) year period, and where no claims of an issued patent covered the aggregate gross revenue from such sales (the “Final Revenue Amount”).Product; and (b) Novatel For each Product that is not described in clause (a) above and is based in whole or in part on any item of Assigned Intellectual Property that as of the date hereof was not the subject of an issued patent or patent application (“Unfiled Assigned IP”), from and after the date hereof the Earn-Out Percentage for such Product shall have thirty be four percent (304%); provided that, (i) days if any such item of Unfiled Assigned IP results in an issued patent, then the Earn-Out Percentage for such Product shall remain at four percent (4%) until the last to expire of any issued patents relating to Unfiled Assigned IP upon which such Product is based, at which time the Earn-Out Percentage for such Product shall be reduced to three percent (3%), and (ii) if all of the Unfiled Assigned IP upon which such Product is based does not result in an issued patent (i.e., all the patent applications go abandoned), then from and after the date of receipt abandonment of the last patent application with respect to Unfiled Assigned IP upon which such Product is based, the Earn-out Revenue Statement from Purchasers Out Percentage for such Product shall be reduced to dispute any amount on the Earn-out Revenue Statement, including the Final Revenue Amount, by providing written notice to Purchasers of such dispute two percent (a “Dispute Notice”) within such thirty (30) day period. If Novatel provides Purchasers with a Dispute Notice, the parties shall cooperate in good faith to resolve such dispute as promptly as practicable and shall make available to each other and any of their respective Representatives as necessary for the review and resolution of the dispute, all relevant books, records and personnel and provide access to actual physical inventory, as reasonably requested by Purchasers and Novatel, as applicable2%). (c) In Notwithstanding the foregoing, in the event that a Product based in whole or in part on the parties are unable Assigned Intellectual Property is covered by the claims of one or more patents issued to resolve any dispute regarding the Final Revenue Amount, such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by an independent certified accountant agreed upon by both parties 3rd party not affiliated with K2 (the “Independent AccountantOther Patents”) whose written and K2 is obligated to make royalty or similar payments to such 3rd party in respect of such Products, then the Earn-Out Percentage for such Product shall be reduced, as reasonably determined by the Board of K2 (which determination shall include the affirmative consent of at least one member of the Board designated by the Xxxxxx Group (as such term is defined in the K2 Operating Agreement), based on the claims of the Other Patents which cover such Product as such claims relate to the Final Revenue Amount shall be conclusive and binding on all parties. All fees and expenses charged by the Independent Accountant shall be shared equally by Purchasers, on the one hand, and Novatel, on the other hand. (d) In the event the Final Revenue Amount, as determined in this Section 1.4, is greater than $40,000,000, Purchasers shall pay to Novatel, by wire transfer of immediately available funds to an account designated by Novatel, an amount in cash equal to (i) the product of (A) the Final Revenue Amount times (B) 0.25, minus (ii) $10,000,000, within five (5) Business Days total claims of the Final Revenue Amount being determined. In the event the Final Revenue Amount, as determined in this Section 1.4, is equal to or less than $40,000,000, no payment shall be made pursuant to this Section 1.4(d). Any payment made by Purchasers to Novatel pursuant to this Section 1.4(d) shall be deemed an adjustment to the Purchase PriceProduct.

Earn-Out. (a) As additional consideration for the Shares, Buyer Parties shall pay to each Seller, a portion of the Earn-Out Amount, if any, equal to the product of such Seller's Earn-Out Share TIMES the Earn-Out Amount for the applicable Calculation Period. The Earn-Out Amount shall be paid in cash and otherwise in accordance with the terms and conditions of this ARTICLE 12. The Earn-Out Amount, if any, shall be payable by Buyer with respect to the Buffalo Inc. Shares, 000 Xxxxxx Shares, and 368 Canada Shares (and allocated as an adjustment to the purchase price for such Shares in a reasonable manner), and by Parent with respect to the Buffalo US Shares. (b) Within one hundred twenty (120) days of the end of each Calculation Period, Parent shall deliver to Sellers a schedule setting forth the Parent's determination of whether the Earn-Out Amount for such period was earned together with the Parent's calculation of Adjusted Earnings for such period; the Parent's determination shall be based on the audited financial statements of Buyer and Parent for the period ended as at the end of the then relevant Calculation Period (the "PROPOSED EARN-OUT AMOUNT"). The Proposed Earn-Out Amount will be subject to Sellers' review. In reviewing the Proposed Earn-Out Amount, Sellers shall have the right to communicate with, and to review the work papers, schedules, memoranda, details of reconciliation entries and other documents Buyer, Parent or the auditors for Buyer and Parent prepared or reviewed in determining the Proposed Earn-Out Amount for such period and thereafter shall have reasonable access to all relevant books and records, all to the extent Sellers reasonably require to complete their review of Parent's determination of the Proposed Earn-Out Amount. Within forty five (45) days following the end after its receipt of June and December of each calendar year following Closing through the end Parent's calculation of the second (2nd) anniversary of the Closing DateProposed Earn-Out Amount, Purchasers Sellers shall provide advise Parent whether, based on such review, they have any exceptions to Novatel a report setting forth the number of each type of Module Product sold during the respective reporting period such determination and the gross revenue attributable related calculations. Unless Sellers deliver to sales of each of the Module Products during Parent within such period. As soon as practicable but not later than forty five (45) days after the second (2nd) anniversary day period a letter describing their exceptions to Parent's calculation of the Closing Date, Purchasers shall deliver to Novatel a statement (applicable Adjusted Earnings and the “corresponding Earn-out Revenue Statement”) setting Out Amount as set forth in the number of each type of Module Product sold during the two (2) year period immediately following the Closingschedule delivered by Parent described in this SECTION 12.1(B), the gross revenue attributable Proposed Earn-Out Amount for the applicable Calculation Period will be conclusive and binding on Buyer Parties and Sellers as to sales of each of the Module Products during such two (2) year period, Adjusted Earnings and the aggregate gross revenue from such sales (the “Final Revenue Amount”). (b) Novatel shall have thirty (30) days from the date of receipt of as to whether the Earn-out Revenue Statement from Purchasers to dispute any amount on the Earn-out Revenue Statement, including the Final Revenue Amount, by providing written notice to Purchasers of Out Amount for such dispute (a “Dispute Notice”) within such thirty (30) day periodperiod is payable. If Novatel provides Purchasers with a Dispute Noticethe Sellers deliver such letter, the parties Parties shall cooperate in good faith to resolve such dispute as promptly as practicable and shall make available to each other and any of their respective Representatives as necessary follow the procedures for the review and resolution of the dispute, all relevant books, records and personnel and provide access to actual physical inventory, as reasonably requested by Purchasers and Novatel, as applicabledisputes set forth in SECTION 12.5. (c) In Within five (5) business days of the event determination of the parties are unable applicable Earn-Out Amount under this SECTION 12.1 or SECTION 12.5, Buyer shall pay to resolve any dispute regarding the Final Revenue Amount, Sellers an amount equal to such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by an independent certified accountant agreed upon by both parties (the “Independent Accountant”) whose written determination as to the Final Revenue Amount shall be conclusive and binding on all parties. All fees and expenses charged by the Independent Accountant shall be shared equally by Purchasers, on the one hand, and Novatel, on the other handamount. (d) In Subject to SECTION 12.2, Buyer Parties' obligations under this ARTICLE 12 will survive, and Buyer shall have the event obligation to pay all Earn-Out Amounts, if any, in accordance with this ARTICLE 12, notwithstanding the Final Revenue Amountcessation of employment for any reason (including as a result of death, as determined in this Section 1.4disability, is greater than $40,000,000, Purchasers shall pay to Novatel, by wire transfer retirement or voluntary termination of immediately available funds to an account designated by Novatel, an amount in cash equal to (iservice) the product of (A) the Final Revenue Amount times (B) 0.25, minus (ii) $10,000,000, within five (5) Business Days any or all of the Final Revenue Amount being determined. In the event the Final Revenue Amount, as determined in this Section 1.4, is equal to or less than $40,000,000, no payment shall be made pursuant to this Section 1.4(d). Any payment made by Purchasers to Novatel pursuant to this Section 1.4(d) shall be deemed an adjustment to the Purchase PriceBitton Brothers.

Earn-Out. (a) Within forty five (45) days following As promptly as practicable after the end of June and December of each calendar one year following Closing through the end of the second (2nd) anniversary of the Closing Date, Purchasers but in no event later than ninety (90) days thereafter, Buyer shall provide deliver to Novatel Seller a report setting forth statement of income (loss) of the number Business as operated by Seller, Buyer or its successors or assigns (the “Earn-Out Income Statement”) for the period starting on (x) if the Closing Date occurs on or before the fifteenth fiscal day of each type the month in which the Closing occurs, the first fiscal day of Module Product sold such month or (y) if the Closing Date occurs after the fifteenth fiscal day of the month in which the Closing occurs, the first fiscal day of the month immediately following the Closing Date (the date referred to in (x) or (y), the “Earn Out Start Date”) until the last fiscal day of the month that is twelve months after the Earn Out Start Date (the “Earn-Out Period”), including, without limitation, a calculation of EBITDA (as defined below) for the Earn-Out Period. The Earn-Out Income Statement shall be prepared in accordance with the Accounting Standards applied in a manner consistent with the preparation of the Interim Statements. The portion of such statement covering the year ended December 31, 2006 shall be included in the consolidated financial statements audited by Buyer’s accounting firm. During the Earn-Out Period, Buyer shall use commercially reasonable efforts to operate the Business in the Ordinary Course of Business in a commercially reasonable fashion (including by not taking any action or making any operational changes having the principal purpose of reducing EBITDA) and shall maintain books and records adequate to permit an audit of the Business as a stand-alone division. Without limiting the generality of the foregoing, Buyer agrees and covenants that, during the respective reporting period and Earn-Out Period, (i) Buyer will not divert any business opportunity relating to the gross revenue attributable to Products, customers or sales of each Products from Buyer to any of Buyer’s Affiliates or other business divisions; (ii) Buyer will continue to manufacture Products so long as, in Buyer’s good faith judgment, sufficient demand exists for such Products (and if Buyer determines that sufficient demand does not exist, Buyer will provide supporting documentation, such as written communication from customers, to that effect), in order to meet such demand; and (iii) all sales of Products, whether effected by Buyer or an Affiliate of Buyer, will be included in the calculation of EBITDA; provided, however¸ that none of the Module Products during such period. As soon as practicable but not later than forty five obligations in clauses (45i) days after through (iii) above shall apply to any products of a type that Buyer can demonstrate was manufactured by Buyer or an Affiliate of Buyer prior to Closing. (b) Following the second (2nd) one year anniversary of the Closing Date, Purchasers each of Buyer and Seller shall deliver give the other party reasonable access at all reasonable times to Novatel a statement the properties, books, records and personnel of the Business for purposes of preparing, reviewing and resolving any disputes concerning the Earn-Out Income Statement. Seller shall have 30 days following the delivery to Seller of the Earn-Out Income Statement during which to provide written notice to Buyer of any dispute of any item contained in the Earn-Out Income Statement (the “Earn-out Revenue Statement”) setting forth the number of each type of Module Product sold during the two (2) year period immediately following the Closing, the gross revenue attributable to sales of each of the Module Products during such two (2) year period, and the aggregate gross revenue from such sales (the “Final Revenue AmountOut Objection Notice”). (b) Novatel , which notice shall have thirty (30) days from set forth in reasonable detail the date basis for such dispute and Seller’s calculation of receipt of EBITDA for the Earn-out Revenue Statement from Purchasers Out Period. If Seller fails to dispute any amount on provide an Earn-Out Objection Notice to Buyer within such 30-day period, the Earn-out Revenue Statement, including Out Income Statement shall be conclusive and binding on the Final Revenue Amount, by providing written notice Parties. In the event that Seller shall provide an Earn-Out Objection Notice to Purchasers of such dispute (a “Dispute Notice”) Buyer within such thirty (30) -day period. If Novatel provides Purchasers with a Dispute Notice, the parties Buyer and Seller shall cooperate in good faith to resolve such the dispute as promptly as practicable possible and agree upon a mutually satisfactory income statement which reflects EBITDA for the Earn-Out Period. If Seller timely provides an Earn-Out Objection Notice to Buyer, and if Buyer and Seller are unable to resolve such objections within 30 days of Buyer’s receipt of the Earn-Out Objection Notice, Buyer and Seller shall submit the items remaining in dispute to the Independent Accountant; provided, however, that the Independent Accountants shall be limited to selecting either the EBITDA amount reflected on Buyer’s Earn-Out Income Statement or the EBITDA amount reflected on the Earn-Out Objection Notice submitted by Seller. If issues are submitted to the Independent Accountants for resolution, (A) Buyer and Seller shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; (B) Buyer and Seller shall instruct the Independent Accountants to make available their determination based solely on such materials presented by Buyer and Seller (i.e., not on the basis of an independent review) and to resolve the dispute with respect to each other such specified item and any amount in accordance with the Accounting Standards, applied in a manner consistent with the preparation of their respective Representatives as necessary the Interim Statements, and in accordance with the definition of EBITDA set forth in this Agreement; (C) the determination of EBITDA for the review Earn-Out Period by the Independent Accountants, as set forth in a notice to be delivered to both Buyer and resolution Seller within sixty (60) days of the disputesubmission to the Independent Accountants of the issues remaining in dispute (or as soon thereafter as practicable), all relevant booksshall be final, records binding and personnel conclusive on the parties; and provide access (D) the fees and costs of the Independent Accountants shall be borne (x) by Seller if the Independent Accountants select Buyer’s calculation of EBITDA for the Earn-Out Period reflected on the Earn-Out Income Statement, or (y) by Buyer, if the Independent Accountants select Seller’s calculation of EBITDA for the Earn-Out Period reflected on the Earn-Out Objection Notice. The Earn-Out Income Statement, either as agreed to actual physical inventoryby Buyer and Seller or as determined by the Independent Accountants pursuant to this paragraph, shall be final and binding and shall be referred to as reasonably requested by Purchasers and Novatel, as applicablethe “Final Earn-Out Income Statement” for the respective Earn-Out Period. Any amounts to be paid pursuant to §2.7(d) below shall be paid within fifteen (15) days of the determination of the Final Earn-Out Income Statement for such Earn-Out Period. (c) In No objection may be raised and no adjustment may be proposed to any entry or item contained in the event Earn-Out Income Statement or the parties are unable to resolve any dispute regarding the Final Revenue Amountcalculation of EBITDA (as defined below), such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by an independent certified accountant agreed upon by both parties (the “Independent Accountant”) whose written determination as to the Final Revenue Amount shall be conclusive and binding on all parties. All fees and expenses charged by the Independent Accountant shall be shared equally by Purchasers, except on the one handgrounds that such item or entry is not in accordance with the provisions of this Agreement or the Accounting Standards, and Novatelapplied in a manner consistent with the preparation of the Interim Statements, on the other handor that such item or entry contains a mathematical error. (d) In For the event the Final Revenue AmountEarn-Out Period, as determined in this Section 1.4, is greater than $40,000,000, Purchasers Buyer shall pay to Novatel, by wire transfer of immediately available funds to an account designated by Novatel, an amount in cash equal to (i) the product of (A) the Final Revenue Amount times (B) 0.25, minus (ii) $10,000,000, within five (5) Business Days of the Final Revenue Amount being determined. In the event the Final Revenue AmountSeller, as determined in this Section 1.4, is equal to or less than $40,000,000, no payment shall be made pursuant to this Section 1.4(d). Any payment made by Purchasers to Novatel pursuant to this Section 1.4(d) shall be deemed an adjustment to the Purchase Price, in immediately available funds to a United States bank account designated to Buyer by Seller in writing at least two (2) Business Days prior to the date of such payment, the product (the “Earn-Out Amount”) of (i) the excess, if a positive number, of (A) EBITDA for the Earn-Out Period over (B) the Earn-Out Threshold (as hereinafter defined), multiplied by (ii) 5; provided, however, that in no event shall the Earn-Out Amount exceed $10,000,000. The “Earn-Out Threshold” shall initially mean $5,000,000, subject to adjustment as provided below.

Earn-Out. (a) Within forty five (45) days following As promptly as practicable after the end of June and December of each calendar one year following Closing through the end of the second (2nd) anniversary of the Closing Date, Purchasers but in no event later than ninety (90) days thereafter, Buyer shall provide deliver to Novatel Seller a report setting forth statement of income (loss) of the number Business as operated by Seller, Buyer or its successors or assigns (the “Earn-Out Income Statement”) for the period starting on (x) if the Closing Date occurs on or before the fifteenth fiscal day of each type the month in which the Closing occurs, the first fiscal day of Module Product sold such month or (y) if the Closing Date occurs after the fifteenth fiscal day of the month in which the Closing occurs, the first fiscal day of the month immediately following the Closing Date (the date referred to in (x) or (y), the “Earn Out Start Date”) until the last fiscal day of the month that is twelve months after the Earn Out Start Date (the “Earn-Out Period”), including, without limitation, a calculation of EBITDA (as defined below) for the Earn-Out Period. The Earn-Out Income Statement shall be prepared in accordance with the Accounting Standards applied in a manner consistent with the preparation of the Interim Statements. The portion of such statement covering the year ended December 31, 2006 shall be included in the consolidated financial statements audited by Buyer’s accounting firm. During the Earn-Out Period, Buyer shall use commercially reasonable efforts to operate the Business in the Ordinary Course of Business in a commercially reasonable fashion (including by not taking any action or making any operational changes having the principal purpose of reducing EBITDA) and shall maintain books and records adequate to permit an audit of the Business as a stand-alone division. Without limiting the generality of the foregoing, Buyer agrees and covenants that, during the respective reporting period and Earn-Out Period, (i) Buyer will not divert any business opportunity relating to the gross revenue attributable to Products, customers or sales of each Products from Buyer to any of Buyer’s Affiliates or other business divisions; (ii) Buyer will continue to manufacture Products so long as, in Buyer’s good faith judgment, sufficient demand exists for such Products (and if Buyer determines that sufficient demand does not exist, Buyer will provide supporting documentation, such as written communication from customers, to that effect), in order to meet such demand; and (iii) all sales of Products, whether effected by Buyer or an Affiliate of Buyer, will be included in the calculation of EBITDA; provided, however ¸ that none of the Module Products during such period. As soon as practicable but not later than forty five obligations in clauses (45i) days after through (iii) above shall apply to any products of a type that Buyer can demonstrate was manufactured by Buyer or an Affiliate of Buyer prior to Closing. (b) Following the second (2nd) one year anniversary of the Closing Date, Purchasers each of Buyer and Seller shall deliver give the other party reasonable access at all reasonable times to Novatel a statement the properties, books, records and personnel of the Business for purposes of preparing, reviewing and resolving any disputes concerning the Earn-Out Income Statement. Seller shall have 30 days following the delivery to Seller of the Earn-Out Income Statement during which to provide written notice to Buyer of any dispute of any item contained in the Earn-Out Income Statement (the “Earn-out Revenue Statement”) setting forth the number of each type of Module Product sold during the two (2) year period immediately following the Closing, the gross revenue attributable to sales of each of the Module Products during such two (2) year period, and the aggregate gross revenue from such sales (the “Final Revenue AmountOut Objection Notice”). (b) Novatel , which notice shall have thirty (30) days from set forth in reasonable detail the date basis for such dispute and Seller’s calculation of receipt of EBITDA for the Earn-out Revenue Statement from Purchasers Out Period. If Seller fails to dispute any amount on provide an Earn-Out Objection Notice to Buyer within such 30-day period, the Earn-out Revenue Statement, including Out Income Statement shall be conclusive and binding on the Final Revenue Amount, by providing written notice Parties. In the event that Seller shall provide an Earn-Out Objection Notice to Purchasers of such dispute (a “Dispute Notice”) Buyer within such thirty (30) -day period. If Novatel provides Purchasers with a Dispute Notice, the parties Buyer and Seller shall cooperate in good faith to resolve such the dispute as promptly as practicable possible and agree upon a mutually satisfactory income statement which reflects EBITDA for the Earn-Out Period. If Seller timely provides an Earn-Out Objection Notice to Buyer, and if Buyer and Seller are unable to resolve such objections within 30 days of Buyer’s receipt of the Earn-Out Objection Notice, Buyer and Seller shall submit the items remaining in dispute to the Independent Accountant; provided, however, that the Independent Accountants shall be limited to selecting either the EBITDA amount reflected on Buyer’s Earn-Out Income Statement or the EBITDA amount reflected on the Earn-Out Objection Notice submitted by Seller. If issues are submitted to the Independent Accountants for resolution, (A) Buyer and Seller shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; (B) Buyer and Seller shall instruct the Independent Accountants to make available their determination based solely on such materials presented by Buyer and Seller (i.e., not on the basis of an independent review) and to resolve the dispute with respect to each other such specified item and any amount in accordance with the Accounting Standards, applied in a manner consistent with the preparation of their respective Representatives as necessary the Interim Statements, and in accordance with the definition of EBITDA set forth in this Agreement; (C) the determination of EBITDA for the review Earn-Out Period by the Independent Accountants, as set forth in a notice to be delivered to both Buyer and resolution Seller within sixty (60) days of the disputesubmission to the Independent Accountants of the issues remaining in dispute (or as soon thereafter as practicable), all relevant booksshall be final, records binding and personnel conclusive on the parties; and provide access (D) the fees and costs of the Independent Accountants shall be borne (x) by Seller if the Independent Accountants select Buyer’s calculation of EBITDA for the Earn-Out Period reflected on the Earn-Out Income Statement, or (y) by Buyer, if the Independent Accountants select Seller’s calculation of EBITDA for the Earn-Out Period reflected on the Earn-Out Objection Notice. The Earn-Out Income Statement, either as agreed to actual physical inventoryby Buyer and Seller or as determined by the Independent Accountants pursuant to this paragraph, shall be final and binding and shall be referred to as reasonably requested by Purchasers and Novatel, as applicablethe “Final Earn-Out Income Statement” for the respective Earn-Out Period. Any amounts to be paid pursuant to §2.7(d) below shall be paid within fifteen (15) days of the determination of the Final Earn-Out Income Statement for such Earn-Out Period. (c) In No objection may be raised and no adjustment may be proposed to any entry or item contained in the event Earn-Out Income Statement or the parties are unable to resolve any dispute regarding the Final Revenue Amountcalculation of EBITDA (as defined below), such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by an independent certified accountant agreed upon by both parties (the “Independent Accountant”) whose written determination as to the Final Revenue Amount shall be conclusive and binding on all parties. All fees and expenses charged by the Independent Accountant shall be shared equally by Purchasers, except on the one handgrounds that such item or entry is not in accordance with the provisions of this Agreement or the Accounting Standards, and Novatelapplied in a manner consistent with the preparation of the Interim Statements, on the other handor that such item or entry contains a mathematical error. (d) In For the event the Final Revenue AmountEarn-Out Period, as determined in this Section 1.4, is greater than $40,000,000, Purchasers Buyer shall pay to Novatel, by wire transfer of immediately available funds to an account designated by Novatel, an amount in cash equal to (i) the product of (A) the Final Revenue Amount times (B) 0.25, minus (ii) $10,000,000, within five (5) Business Days of the Final Revenue Amount being determined. In the event the Final Revenue AmountSeller, as determined in this Section 1.4, is equal to or less than $40,000,000, no payment shall be made pursuant to this Section 1.4(d). Any payment made by Purchasers to Novatel pursuant to this Section 1.4(d) shall be deemed an adjustment to the Purchase Price, in immediately available funds to a United States bank account designated to Buyer by Seller in writing at least two (2) Business Days prior to the date of such payment, the product (the “Earn-Out Amount”) of (i) the excess, if a positive number, of (A) EBITDA for the Earn-Out Period over (B) the Earn-Out Threshold (as hereinafter defined), multiplied by (ii) 5; provided, however, that in no event shall the Earn-Out Amount exceed $10,000,000. The “Earn-Out Threshold” shall initially mean $5,000,000, subject to adjustment as provided below.

Earn-Out. In addition to the Purchase Price paid at Closing and any Inventory Adjustment, SELLER shall also be entitled to receive from BUYER an additional payment (the "Earn-Out Payment") on the following terms and conditions: (a) Within forty If the Net Sales by BUYER and any of its Affiliates of the Products in the countries in which the Products are sold as of the Closing Date, or in which the Products have been presented for possible sale and which are listed on SCHEDULE 2.3(a), as determined by BUYER in accordance with its standard accounting procedures, which are described on SCHEDULE 2.3(b), exceeds any of the levels set forth on SCHEDULE 2.3(b) (the "Sales Levels") for each of the calendar years ended December 31, 2001 and 2002 (the "Earn-Out Periods"), BUYER will make an Earn-Out Payment for the respective year based upon the Sales Level achieved in that year calculated as provided in SCHEDULE 2.3(b). BUYER shall prepare or cause its regular outside accountants to prepare a statement of Net Sales for each such calendar year (the "Annual Statement") together with a calculation of the Earn-Out Payment for such year, which statement and calculation shall be delivered to SELLER within forty-five (45) days following the end of June and December of each applicable calendar year following Closing through year. In addition to the end of the second (2nd) anniversary of the Closing Dateforegoing, Purchasers BUYER shall provide to Novatel a report setting forth the number of each type of Module Product sold during the respective reporting period and the gross revenue attributable to sales of each of the Module Products during such period. As soon as practicable but not later than forty SELLER, within forty-five (45) days after following the second end of each quarterly period during the Earn-Out Periods (2nd) anniversary excluding, however the last quarter of such calendar year), a statement of Net Sales for such quarterly period prepared from BUYER'S books and records in its customary manner. Such quarterly statements shall be provided for SELLER'S information only, and shall not bind BUYER or its accountants in their preparation of the Closing Date, Purchasers shall deliver to Novatel a statement (Annual Statements and their calculation of the “Earn-out Revenue Statement”) setting forth Out Payment. SELLER or its representatives shall have the number right to inspect the books and records of each type BUYER, at BUYER'S principal office, upon reasonable notice and at a mutually convenient time, as SELLER may reasonably require in order to verify the accuracy of Module Product sold during the two (2) year period immediately following the Closing, the gross revenue attributable to sales of each of the Module Products during any such two (2) year period, and the aggregate gross revenue from such sales (the “Final Revenue Amount”)statements delivered by BUYER. (b) Novatel SELLER shall have thirty (30) days from to review the date Annual Statement (as well as the accountants' work papers related thereto) and calculation and to object thereto in writing; provided, however, that such objection may only go to whether the calculation was carried out in conformity with BUYER'S standard procedures, and may not go to the validity of receipt such procedures. If the parties are unable to resolve SELLER'S objections to the Annual Statement and calculation within fifteen (15) days after SELLER submits such objections to BUYER, they or either of them shall submit a statement of unresolved differences together with a proposed calculation of the Earn-out Revenue Statement from Purchasers Out Payments to dispute any amount on the Earn-out Revenue Statement, including the Final Revenue Amount, by providing written notice Accountants for a binding and nonappealable determination to Purchasers of such dispute (a “Dispute Notice”) be rendered within such thirty (30) day perioddays after such submission. If Novatel provides Purchasers with a Dispute Notice, the parties shall cooperate in good faith to resolve such dispute as promptly as practicable All fees and shall make available to each other and any of their respective Representatives as necessary for the review and resolution expenses of the dispute, all relevant books, records Accountants incurred in such capacity shall be billed to and personnel shared equally by the SELLER and provide access to actual physical inventory, as reasonably requested by Purchasers and Novatel, as applicablethe BUYER. (c) In no event shall the event the parties are unable to resolve any dispute regarding the Final Revenue Amount, such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by an independent certified accountant agreed upon by both parties (the “Independent Accountant”) whose written determination as to the Final Revenue Amount shall be conclusive and binding on all parties. All fees and expenses charged by the Independent Accountant shall be shared equally by Purchasers, on the one hand, and Novatel, on the other hand. (d) In the event the Final Revenue Amount, as determined in this Section 1.4, is greater than $40,000,000, Purchasers shall pay to Novatel, by wire transfer of immediately available funds to an account designated by Novatel, an amount in cash equal to Earn-Out Payment exceed (i) the product of (A) the Final Revenue Amount times (B) 0.25$4,000,000 for any calendar year, minus or (ii) $10,000,000, within five (5) Business Days of the Final Revenue Amount being determined. In the event the Final Revenue Amount, as determined 6,500,000 in this Section 1.4, is equal to or less than $40,000,000, no payment shall be made pursuant to this Section 1.4(d). Any payment made by Purchasers to Novatel pursuant to this Section 1.4(d) shall be deemed an adjustment to the Purchase Pricetotal.

Earn-Out. (a) Within forty five (45) days following the end of June and December of each calendar year following Closing through the end of the second (2nd) anniversary of the Closing Date, Purchasers shall provide to Novatel a report setting forth the number of each type of Module Product sold during the respective reporting period and the gross revenue attributable to sales of each of the Module Products during such period. As soon as practicable but not later than forty five (45) days after the second (2nd) anniversary of the Closing Date, Purchasers shall deliver to Novatel a statement (the “Earn-out Revenue Statement”) setting forth the number of each type of Module Product sold during the two (2) year period immediately following the Closing, the gross revenue attributable to sales of each of the Module Products during such two (2) year period, and the aggregate gross revenue from such sales (the “Final Revenue Amount”). (b) Novatel shall have thirty (30) days from the date of receipt of the Earn-out Revenue Statement from Purchasers to dispute any amount on the Earn-out Revenue Statement, including the Final Revenue Amount, by providing written notice to Purchasers of such dispute (a “Dispute Notice”) within such thirty (30) day period. If Novatel provides Purchasers with a Dispute Notice, the parties shall cooperate in good faith to resolve such dispute as promptly as practicable and shall make available to each other and any of their respective Representatives as necessary for the review and resolution of the dispute, all relevant books, records and personnel and provide access to actual physical inventory, as reasonably requested by Purchasers and Novatel, as applicable. (c) In the event of the parties are unable exercise of the Put Options due to resolve any dispute regarding a Cessation without Cause and in case of a Full Exit paid in cash or Cash Equivalent within a nine (9) month-period from the Final Revenue AmountCessation, such dispute each of the Xxxxx Parties shall be submitted to, and all issues having a bearing on such dispute shall be resolved by have the right to receive an independent certified accountant agreed upon by both parties earn-out (the “Independent AccountantPut Earn-Out”) whose written determination as equal to the Final Revenue Amount shall be conclusive and binding on all parties. All difference between: (i) the price that such Xxxxx Party would have received for its Put Securities if it had participated in such Full Exit, after deduction of its share of fees and expenses charged by the Independent Accountant shall be shared equally by Purchasers, on the one hand, calculated in accordance with Section 7.2(f) above and Novatel, on the other hand. (d) In the event the Final Revenue Amountdeduction, as determined in this Section 1.4the case may be, is greater than $40,000,000, Purchasers shall pay to Novatel, by wire transfer of immediately available funds to an account designated by Novatel, an amount in cash (the “Put Escrow Amount”) equal to (i) the product of (A) the Final Revenue Amount times maximum liability specified in respect of the representations and warranties, if any, granted to the Transferee pursuant to such Full Exit, and (B) 0.25, minus the pro-rata share of such representations and warranties for which it would have been responsible if it had participated in such Full Exit (such pro-rata share being calculated in accordance with Section 7.2(f)); and (ii) $10,000,000, within five the price to be paid to such Xxxxx Party pursuant to Section 14.5(a). (5b) Business Days the Put Escrow Amount will be paid on the date of completion of the Final Revenue Full Exit to those of the Xxxxx Parties who provide the Put Options Grantors with first demand guarantees from first rank banks for the same amount. (c) Except for the Xxxxx Parties who provide the Put Options Grantors with first demand guarantees, each Put Escrow Amount being determined. In shall be deposited with an escrow account opened in the event books of a first rank bank for a duration as long as the Final Revenue Amountlongest time limitation regarding the representations and warranties granted to the Transferee pursuant to the Full Exit. (d) If the Put Options Grantors are obliged to indemnify the Transferee pursuant to the agreement relating to the Full Exit, they are expressly authorized, with respect to each of the Xxxxx Parties and in proportion to their respective Imputed Holdings, to call under the first demand guarantee or to take from the escrow account, as determined in this Section 1.4the case maybe, is equal an amount corresponding to or less than $40,000,000the product of (A) the amount of the evidenced loss suffered by the Transferee and (B) the share for which such Xxxxx Party would have been responsible if it had participated to the Full Exit. (e) At the expiry of the longest time limitation regarding the representations and warranties granted to the Transferee pursuant to the Full Exit, no payment each first demand guarantee shall be released, each escrow account shall be released and the sums (including any interests and/or gains thereon) remaining on this account after payments made in accordance with Paragraph (d) above shall be paid to the Xxxxx Parties. (f) When held in escrow, each Put Escrow Amount shall be invested in liquid and short-term investment. (g) The Put Options Grantors shall use their commercially reasonable efforts to mitigate any claim or liability asserted by the Transferee pursuant to this Section 1.4(d). Any payment made by Purchasers to Novatel pursuant to this Section 1.4(d) shall be deemed an adjustment to the Purchase Pricea Full Exit.

Earn-Out. (a) Within forty five (45) days following the end of June and December of each calendar year following Closing through the end of the second (2nd) anniversary of the Closing DateIf, Purchasers shall provide to Novatel a report setting forth the number of each type of Module Product sold during the respective reporting period and the gross revenue attributable to sales of each of the Module Products during such period. As soon as practicable but not later than forty five (45) days after the second (2nd) anniversary of the Closing Date, Purchasers shall deliver to Novatel a statement (the “Earn-out Revenue Statement”) setting forth the number of each type of Module Product sold during the two (2) year period immediately following the Closing, the gross revenue attributable Business achieves an Earn Out Milestone by satisfying the criteria and deliverables described in Exhibit A relating to sales such Earn Out Milestone (in each case as determined by the Purchaser in its sole discretion) on or before the due date for such Earn Out Milestone as set out in Exhibit A, the Purchaser shall promptly, and in any event within twenty (20) days after the achievement of each such Earn Out Milestone, pay to the Vendor’s Counsel in trust for the Vendor (in its own capacity and as agent for and on behalf of the Module Products during Additional Vendors) the portion of the Earn Out Amount corresponding to such two Earn Out Milestone as set forth in Exhibit A. Notwithstanding anything to the contrary in this Agreement: (2a) year period, any portion of the Earn Out Amount that is paid to the Vendor’s Counsel in trust shall constitute and shall be treated by the aggregate gross revenue from such sales (Parties for all purposes as a payment by the “Final Revenue Amount”).Purchaser of a portion of the Purchase Price; (b) Novatel no interest shall have thirty (30) days from the date of receipt be payable on any portion of the Earn-out Revenue Statement from Purchasers to dispute any amount on the Earn-out Revenue Statement, including the Final Revenue Earn Out Amount, by providing written notice to Purchasers of such dispute (a “Dispute Notice”) within such thirty (30) day period. If Novatel provides Purchasers with a Dispute Notice, the parties shall cooperate in good faith to resolve such dispute as promptly as practicable and shall make available to each other and any of their respective Representatives as necessary for the review and resolution of the dispute, all relevant books, records and personnel and provide access to actual physical inventory, as reasonably requested by Purchasers and Novatel, as applicable.; (c) In the event Purchaser’s obligation to pay a portion of the parties are unable to resolve Earn Out Amount in connection with the achievement of a particular Earn Out Milestone shall not be contingent upon the achievement of any dispute regarding the Final Revenue Amount, such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by an independent certified accountant agreed upon by both parties (the “Independent Accountant”) whose written determination as to the Final Revenue Amount shall be conclusive and binding on all parties. All fees and expenses charged by the Independent Accountant shall be shared equally by Purchasers, on the one hand, and Novatel, on the other hand.Earn Out Milestone; (d) In the event Purchaser shall have the Final Revenue Amountsole and absolute discretion (but not the obligation) to pay some or all of the portion of the Earn Out Amount corresponding to a particular Earn Out Milestone if not all of the criteria and deliverables applicable to such Earn Out Milestone are not satisfied or achieved, which payments, if any, shall be made at such time or times, in such amounts and subject to such further conditions or requirements as determined the Purchaser shall determine in this its sole discretion; (e) any portion of the Earn Out Amount paid by the Purchaser (including any payments made pursuant to Section 1.42.6(d) above) shall constitute part of the consideration paid for the Purchased Assets and not payment on account of services or any other assets; (f) following Closing and until the last due date for an Earn Out Milestone as set out in Exhibit A, is greater than $40,000,000the Purchaser shall use commercially reasonable efforts to operate the Business in the ordinary course and consistent with past practices in effect immediately prior to the Closing and shall, Purchasers shall pay during such period, use commercially reasonable efforts to Novatelensure that the Employees are afforded sufficient time to dedicate toward, by wire transfer and are not otherwise tasked such that they cannot reasonably achieve, the timely completion of immediately available funds to an account designated by Novatelthe Earn Out Milestones. Notwithstanding the foregoing, an amount in cash equal to the Vendors acknowledge and agree that, following Closing, (i) the product Purchaser or its Affiliates shall have the power and right to control all aspects of (A) the Final Revenue Amount times (B) 0.25Business, minus and (ii) $10,000,000, within five (5) Business Days the Purchaser or its Affiliates may exercise or refrain from exercising such power and right as it may consider appropriate and in the best interests of the Final Revenue Amount being determined. In Purchaser or its Affiliates (rather than in the event interests of the Final Revenue AmountVendor, as determined in this Section 1.4, is equal to or less than $40,000,000, no payment shall be made pursuant to this Section 1.4(d). Any payment made by Purchasers to Novatel pursuant to this Section 1.4(d) shall be deemed an adjustment having regard to the Purchase Pricepayment of the Earn Out Amount); and (g) all payments of any portion of the Earn Out Amount are subject to the rights of the Purchaser under Section 6.11.

Earn-Out. (a) Within forty five (45) days following In addition to the end of June and December of each calendar year following Closing through Base Merger Consideration payable to the end Company Members pursuant to the terms hereof, the Company Members shall be entitled to receive their respective Pro Rata Portion of the second (2nd) anniversary of the Closing Date, Purchasers shall provide Earn-Out Payment determined pursuant to Novatel a report setting forth the number of each type of Module Product sold during the respective reporting period and the gross revenue attributable to sales of each of the Module Products during such period. As soon as practicable but not later than forty five (45) days after the second (2nd) anniversary of the Closing Date, Purchasers shall deliver to Novatel a statement Exhibit E (the “Earn-out Revenue StatementOut Payment”) setting forth in the number of each type of Module Product sold event the Business achieves the performance milestones described on Exhibit E during the two (2) year period immediately following the Closing, the gross revenue attributable to sales of each of the Module Products during such two (2) year period, and the aggregate gross revenue from such sales Earn-Out Period (the “Final Revenue AmountEarn-Out Milestones”). (b) Novatel shall have thirty (30) days from the date of receipt The calculation of the Earn-out Revenue Statement from Purchasers Out Payment shall be initially determined in good faith by Parent within seventy-five (75) days of the end of the applicable Earn-Out Period. Upon such determination, Parent shall deliver a certificate to dispute any amount on the Representative setting forth Parent’s calculation of the Earn-out Revenue StatementOut Payment, including together with all reasonable supporting documentation necessary for the Final Revenue AmountRepresentative to confirm Parent’s calculation of the Earn-Out Payment (the “Parent Earn-Out Certificate”). Within twenty (20) Business Days following the Representative’s receipt of the Parent Earn-Out Certificate, by providing the Representatives may deliver a written notice to Purchasers Parent objecting to the Parent’s calculation of such dispute Earn-Out Payment in the Parent Earn-Out Certificate (a the “Dispute Representative Earn-Out Objection Notice”) within such thirty (30) day period. If Novatel provides Purchasers with ); provided that if the Representative fails to deliver a Dispute Representative Earn-Out Objection Notice, the parties calculation of the Earn-Out Payment set forth in the Parent Earn-Out Certificate shall cooperate be deemed final and binding on the parties. Upon the delivery of the Representative Earn-Out Objection Notice within such twenty (20) Business Day period, the Representative and the Parent shall confer in good faith for a period of up to fifteen (15) Business Days in an attempt to resolve such dispute as promptly as practicable any disagreement and any resolution by them shall be in writing and shall make available be final and binding. If, after such fifteen (15) Business Day period, the Parent and the Representative cannot resolve any such disagreement, then the parties shall engage the Accounting Firm to each other review the calculations for the Earn-Out Payment. After review of such calculations, the Accounting Firm shall promptly determine the amount of the Earn-Out Payment and any such determination shall be final and binding on the parties. In conducting its review, the Accounting Firm shall consider only items in dispute, and shall base its determination solely on presentations of Parent and Representatives (i.e., no independent investigation). The fees and expenses of the Accounting Firm shall be allocated between Parent and the Representative so that the Representative shall be responsible for that portion of the fees and expenses equal to such fees and expenses multiplied by a fraction, the numerator of which is the aggregate dollar value of issues in dispute submitted to the Accounting Firm that are resolved in a manner further from the position submitted to the Accounting Firm by the Representative and closer to the position submitted to the Accounting Firm by Parent (as finally determined by the Accounting Firm), and the denominator of which is the total dollar value of the issues in dispute so submitted, and Parent shall be responsible for the remainder of such fees and expenses. Any portion of the Accounting Firm’s fees and expenses payable hereunder by the Representative shall be paid by the Company Members in accordance with their respective Representatives as necessary for the review and resolution of the dispute, all relevant books, records and personnel and provide access to actual physical inventory, as reasonably requested by Purchasers and Novatel, as applicablePro Rata Portion. (c) In the event the parties Earn-Out Milestones are unable finally determined to resolve any dispute regarding the Final Revenue Amountbe satisfied in accordance with this Section 2.7, such dispute then Parent shall pay (or caused to be submitted to, and all issues having a bearing on such dispute shall be resolved by an independent certified accountant agreed upon by both parties (the “Independent Accountant”paid) whose written determination as to the Final Revenue Amount shall be conclusive and binding on all parties. All fees and expenses charged by Company Members (in accordance with each such Company Member’s Pro Rata Portion) the Independent Accountant shall be shared equally by Purchasers, on aggregate amount of the one hand, and Novatel, on the other handEarn-Out Payment allocated as determined pursuant to Section 2.7(a). (d) In The parties acknowledge that the payment of any Earn-Out Payment is contingent upon the future Net Revenue (as defined on Exhibit E) derived by Parent from the products and services of the Company during the applicable Earn-Out Periods. Parent shall make or cause to be made all business decisions with respect to the operation of the Business following the Closing in good faith, and not take, or permit to be taken, any action which has the sole objective of avoiding, circumventing or minimizing the opportunity to achieve the Earn-Out Payments hereunder or the ability of the Company Members to receive the Earn-Out Payments. (e) Notwithstanding anything to the contrary set forth herein, in the event of the Final Revenue Amountsale of all or substantially all of the assets of the Business by Parent in a transaction in which this Agreement is not assigned to the purchaser in such sale transaction, as determined Parent, in this Section 1.4its sole discretion, is greater than $40,000,000, Purchasers shall pay to Novatel, by wire transfer of immediately available funds to an account designated by Novatel, an amount in cash equal to either (i) obtain such purchaser’s commitment to assume the product obligations with respect to the payment of the Earn-Out Payments if such payments become payable (Asubject to the conditions set forth herein and in Exhibit E, including the achievement of the Earn-Out Milestones) with respect to any Earn-Out Period ending after the Final Revenue Amount times (B) 0.25, minus closing date of such sale transaction or (ii) $10,000,000accelerate, within five subject to and contingent upon the occurrence such sale, the obligations to pay the applicable maximum Earn-Out Payment (5and pay such amounts in full) Business Days for any Earn-Out Period that has not ended prior to the consummation of such sale transaction. For purposes of clarity and by way of example, if Parent sells all or substantially all of the Final Revenue Amount being determinedassets of the Business following the First Earn-Out Period but before the end of the Second Earn-Out Period, there will not be any acceleration of the Earn-Out Payment obligations for the First Earn-Out Period even if the purchaser of the assets does not assume the obligations under this Agreement. In Further, if the event sale occurs following the Final Revenue AmountSecond Earn-Out Period, as determined in there will not be any acceleration of the Earn-Out Payment obligations for the First Earn-Out Period or Second Earn-Out Period even if the purchaser of the assets does not assume the obligations under this Section 1.4, is equal to or less than $40,000,000, no payment shall be made pursuant to this Section 1.4(d). Any payment made by Purchasers to Novatel pursuant to this Section 1.4(d) shall be deemed an adjustment to the Purchase PriceAgreement.

Earn-Out. (a) Within forty five On or prior to March 31, 2022, Buyer shall (45i) days following deliver or cause to be delivered to Seller (A) the end of June and December of each calendar year following Closing through the end audited consolidated balance sheet of the second (2nd) anniversary Acquired Companies as of December 31, 2021 and the related statements of income, cash flows and stockholders’ equity of the Acquired Companies for the fiscal year then ended (in each case, after giving effect to the Pre-Closing DateRestructuring as if it had been completed as of December 31, Purchasers shall provide to Novatel a report setting forth the number of each type of Module Product sold during the respective reporting period 2020 and including any related notes and the gross revenue attributable to sales of each related reports of the Module Products during such period. As soon as practicable but not later than forty five independent public accountants), and (45B) days after the second (2nd) anniversary of the Closing Date, Purchasers shall deliver to Novatel a statement (the “Earn-out Revenue Out Statement”) setting forth in reasonable detail (1) the number of each type of Module Product sold during Adjusted Consolidated EBITDA for the two fiscal year ended December 31, 2021 (the “2021 EBITDA”) and (2) year period immediately following the Closing, the gross revenue attributable to sales of each of the Module Products during such two (2) year period, and the aggregate gross revenue from such sales (the “Final Revenue Amount”). (b) Novatel shall have thirty (30) days from the date of receipt its calculation of the Earn-Out Amount (which calculation shall be based on the 2021 EBITDA and otherwise in accordance with the earn-out Revenue Statement from Purchasers to dispute any amount calculation example set forth on Section 2.6(a) of the Seller Disclosure Schedules), and (ii) within five (5) Business Days after delivery of the Earn-out Revenue Out Statement, including the Final Revenue Amount, by providing written notice pay (or cause to Purchasers of such dispute (a “Dispute Notice”be paid) within such thirty (30) day period. If Novatel provides Purchasers with a Dispute Notice, the parties shall cooperate in good faith to resolve such dispute as promptly as practicable and shall make available to each other and any of their respective Representatives as necessary for the review and resolution of the dispute, all relevant books, records and personnel and provide access to actual physical inventory, as reasonably requested by Purchasers and Novatel, as applicable. (c) In the event the parties are unable to resolve any dispute regarding the Final Revenue Amount, such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by an independent certified accountant agreed upon by both parties (the “Independent Accountant”) whose written determination as to the Final Revenue Amount shall be conclusive and binding on all parties. All fees and expenses charged by the Independent Accountant shall be shared equally by Purchasers, on the one hand, and Novatel, on the other hand. (d) In the event the Final Revenue Amount, as determined in this Section 1.4, is greater than $40,000,000, Purchasers shall pay to NovatelSeller, by wire transfer of immediately available funds to an account of Seller designated in writing by NovatelSeller to Buyer at least two (2) Business Days prior thereto, an amount in cash equal to the Earn-Out Amount (as determined in accordance with clauses (i) through (iii) of Section 2.6(d) hereof) set forth on such Earn-Out Statement. After delivery of the product Earn-Out Statement and other documents contemplated by this Section 2.6(a) to Seller, Buyer shall (i) provide Seller and its Representatives, upon reasonable advance notice, with reasonable access during normal business hours to the books and records (including relevant work papers and other back-up support for each calculation included therein) used to prepare the Earn-Out Statement and the employees and accountants of (A) the Final Revenue Amount times (B) 0.25, minus Buyer or the Acquired Companies involved in the preparation thereof and (ii) $10,000,000reasonably cooperate with Seller and its Representatives, within five (5) Business Days including the provision on a reasonably timely basis of all information reasonably requested by Seller and its Representatives in connection with their review of the Final Revenue Amount being determined. Earn-Out Statement. (b) In the event that Seller, in good faith, disputes any of the Final Revenue Amountcalculations in the Earn-Out Statement, as determined Seller shall, on or prior to the date which is forty-five (45) days following the date on which Buyer delivers or causes to be delivered the Earn-Out Statement and other documents contemplated by Section 2.6(a) to Seller (the “Earn-Out Objection Deadline”), prepare and deliver to Buyer a written notice of dispute (the “Earn-Out Dispute Notice”), which Earn-Out Dispute Notice shall identify, and provide a reasonably detailed explanation of, the basis upon which Seller has delivered such Earn-Out Dispute Notice. Upon Buyer’s receipt of the Earn-Out Dispute Notice, Buyer and Seller shall attempt to resolve in this Section 1.4, is equal to or less than $40,000,000, no payment shall be made pursuant to this Section 1.4(dgood faith the matters contained in the Earn-Out Dispute Notice within thirty (30) days after Buyer’s receipt thereof (the “Earn-Out Resolution Period”). Any payment made If Buyer and Seller reach a resolution with respect to such matters on or before the final day of the Earn-Out Resolution Period, the Earn-Out Statement prepared by Purchasers to Novatel pursuant to this Section 1.4(dBuyer (as modified by such resolution) shall be deemed to be the “Final Earn-Out Statement” for purposes of the payment (if any) contemplated by Section 2.6(d). If (i) Seller notifies Buyer in writing of its acceptance of the Earn-Out Statement (the “Earn-Out Acceptance Notice”) or (ii) an adjustment Earn-Out Dispute Notice is not delivered to Buyer prior to the Purchase Priceexpiration of the Earn-Out Objection Deadline, the Earn-Out Statement prepared by Buyer shall be deemed to be the “Final Earn-Out Statement” for purposes of the payment (if any) contemplated by Section 2.6(d) on the earlier of (x) the date on which Buyer receives the Earn-Out Acceptance Notice, if applicable, and (y) the expiration of the Earn-Out Objection Deadline.

Earn-Out. (a) Within forty five As additional consideration for the Purchased Assets, if applicable, Buyer shall pay to Parent (45on behalf of Sellers) days following $12,500,000 (the end of June and “Earn-Out Payment”) if the Technology Business achieves Annual Recurring Revenue equal to or greater than $29,000,000 (the “Earn-Out Event”) on or prior to December of each calendar year following Closing through 31st, 2024. (i) In the end event the date of the second (2nd) anniversary Requisite Stockholder Approval of a Take-Private Transaction occurs prior to December 31st, 2024, Buyer shall, prior to the consummation of such Take-Private Transaction, pay $2,500,000 in the aggregate to the holders of record of the Closing issued and outstanding Class A shares of Parent and issued and outstanding Class B units of Rubicon Tech Holdings as of the record date of the meeting at which the Requisite Stockholder Approval is obtained, which payment, for the avoidance of doubt, will be made on a pro rata basis, and the Earn-Out Payment, if payable, shall be decreased by the same amount. For the avoidance of doubt, Bxxxx agrees and acknowledges that the payment set forth in this Section 2.4(a)(i) is not contingent on the occurrence of the Earn-Out Event and shall become payable in full upon any Requisite Stockholder Approval of a Take-Private Transaction which occurs prior to December 31st, 2024. Bxxxx hereby agrees and acknowledges that the holders of record of the issued and outstanding Class A shares of Parent and issued and outstanding Class B units of Rubicon Tech Holdings as of the record date of the meeting at which the Requisite Stockholder Approval is obtained are express third-party beneficiaries of this Section 2.4(a)(i), entitled to enforce it against Buyer as if they were a party hereto. (b) Procedures Applicable to Determination of the Earn-Out Payments. (i) On or before March 31st, 2025 (the “Earn-Out Calculation Delivery Date”), Purchasers Buyer shall provide prepare and deliver to Novatel Parent a report written statement (the “Earn-Out Calculation Statement”) setting forth the number in reasonable detail its determination of each type of Module Product sold during the respective reporting period Annual Recurring Revenue for fiscal year 2024 and the gross revenue attributable to sales of each its calculation of the Module Products during such period. As soon as practicable but not later than forty resulting Earn-Out Payment (the “Earn-Out Calculation”). (ii) Parent shall have forty-five (45) days after the second (2nd) anniversary receipt of the Closing Date, Purchasers shall deliver to Novatel a statement Earn-Out Calculation Statement (the “Review Period”) to review the Earn-out Revenue StatementOut Calculation Statement and the Earn-Out Calculation set forth therein. During the Review Period, Parent and its accountants and other Representatives shall have the right to inspect Buyer’s books and records (to the extent related to the Technology Business) during normal business hours at Buyer’s offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of Annual Recurring Revenue, the Earn-Out Calculation and the resulting Earn-Out Payment. Prior to the expiration of the Review Period, Parent may object to the Earn-Out Calculation set forth in the Earn-Out Calculation Statement by delivering a written notice of objection (an “Earn-Out Calculation Objection Notice”) setting forth to Buyer. Any Earn-Out Calculation Objection Notice shall specify the number of each type of Module Product sold during items in the two (2) year period immediately following applicable Earn-Out Calculation disputed by Parent and shall describe in reasonable detail the Closingbasis for such objection, as well as the gross revenue attributable amount in dispute. If Parent fails to sales of each deliver an Earn-Out Calculation Objection Notice to Buyer prior to the expiration of the Module Products during such two (2) year periodReview Period, then the Earn-Out Calculation set forth in the Earn-Out Calculation Statement shall be final and binding on the parties hereto. If Parent timely delivers an Earn-Out Calculation Objection Notice, Buyer and Parent shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of Annual Recurring Revenue and the aggregate gross revenue from such sales (the “Final Revenue Amount”). (b) Novatel shall have Earn-Out Payment. If Buyer and Parent are unable to reach agreement within thirty (30) days from the date of receipt of the after such an Earn-out Revenue Statement from Purchasers Out Calculation Objection Notice has been given, then Buyer and Parent jointly shall engage the dispute resolution group of a nationally-recognized, independent accounting firm (such accounting firm, the “Accounting Firm”), who, acting as experts and not arbitrators, shall resolve the unresolved disputed items. Parent and Buyer will enter into a customary engagement agreement (and, for the avoidance of doubt, shall each pay 50% of any advance retainer required by the Accounting Firm) with the Accounting Firm and agree to dispute any amount cooperate in good faith with the Accounting Firm during the term of its engagement. The Accounting Firm shall be directed to render a written report on the unresolved disputed items with respect to the applicable Earn-out Revenue StatementOut Calculation as promptly as practicable, including the Final Revenue Amount, by providing written notice to Purchasers of such dispute (a “Dispute Notice”) within such but in no event greater than thirty (30) day period. If Novatel provides Purchasers with a Dispute Noticedays after such submission to the Accounting Firm, the parties shall cooperate in good faith and to resolve such dispute as promptly as practicable only those unresolved disputed items set forth in the Earn-Out Calculation Objection Notice. The Accounting Firm shall (i) resolve the disputed items based solely on the applicable definitions and shall make available to each other terms in this Agreement and any of their respective Representatives as necessary for the presentations by Buyer and Parent and not by independent review and (ii) shall not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. Following the delivery of the presentations, Bxxxx and Parent may each submit a response to the other Party’s presentation. The resolution of the dispute, all relevant books, records dispute and personnel the calculation of Annual Recurring Revenue that is the subject of the applicable Earn-Out Calculation Objection Notice by the Accounting Firm shall be final and provide access binding on the parties hereto. Judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the Party against which such determination is to actual physical inventory, be enforced. The fees and expenses of the Accounting Firm shall be borne by Pxxxxx and Buyer in proportion to the amounts by which their respective calculations of Annual Recurring Revenue differ from Annual Recurring Revenue as reasonably requested finally determined by Purchasers and Novatel, as applicablethe Accounting Firm. (c) In the event the parties are unable to resolve At any dispute regarding the Final Revenue Amount, such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by an independent certified accountant agreed upon by both parties (the “Independent Accountant”) whose written determination as time prior to the Final Revenue Amount payment of the Earn-Out Payment to Parent (or a final determination that no further Earn-Out Payments are or may be payable to Parent), if Buyer effects a sale, lease, exchange or other transfer, directly or indirectly, in one transaction or a series of related transactions, of all or substantially all of the assets of the Technology Business or a merger, consolidation, recapitalization or other transaction in which any Person other than Buyer or any wholly owned subsidiary of Buyer becomes the beneficial owner, directly or indirectly, of 50% or more of the combined voting power or assets of the Technology Business, Buyer (and Guarantor) shall be conclusive (i) remain responsible for all of its obligations with respect to the Earn-Out Payment set forth in subsection (a) hereof; and binding on all parties. All fees (ii) make provision for the transferee, lessee, or successor to assume and expenses charged by succeed to the Independent Accountant shall be shared equally by Purchasers, on the one hand, obligations of Buyer (and Novatel, on the other handGuarantor) set forth in this Section 2.4. (d) In Subject to the event terms of this Agreement, subsequent to the Final Revenue AmountClosing, as determined Buyer shall have sole discretion with regard to all matters relating to the operation of the Technology Business; provided, that Buyer shall not, directly or indirectly, take any actions in bad faith that would have the purpose of avoiding the Earn-Out Payment hereunder. (e) Buyer shall have the right to withhold and set off against any amount otherwise due to be paid pursuant to this Section 1.4, is greater than $40,000,000, Purchasers shall pay 2.4 (excluding Section 2.4(a)(i)) any Losses to Novatel, by wire transfer which any Buyer Indemnitees may be entitled under Article IX of immediately available funds to an account designated by Novatel, an amount in cash equal to this Agreement or any other Ancillary Agreement. (f) The Parties hereto understand and agree that (i) the product contingent rights to receive any Earn-Out Payment shall not be represented by any form of (A) certificate or other instrument, are not transferable, except by operation of Law relating to descent and distribution, divorce and community property, and do not constitute an equity or ownership interest in Buyer the Final Revenue Amount times (B) 0.25, minus Technology Business (ii) $10,000,000Sellers shall not have any rights as a securityholder of Buyer as a result of Sellers’ contingent right to receive any Earn-Out Payment hereunder, within five and (5iii) Business Days no interest is payable with respect to any Earn-Out Payment. (g) Buyer and Sellers intend that for federal, state, local and foreign Tax purposes, the Earn-Out Payment (excluding any payment in accordance with Section 2.4(a)(i)) shall be treated as an adjustment to the consideration for the purchase and sale of the Final Revenue Amount being determined. In the event the Final Revenue Amount, as determined in this Section 1.4, is equal to or less than $40,000,000, no payment shall be made pursuant to this Section 1.4(d)Purchased Assets. Any payment made by Purchasers to Novatel pursuant to this in accordance with Section 1.4(d2.4(a)(i) shall be deemed treated for U.S. federal income tax purposes as an adjustment to the Purchase Priceconsideration for the purchase and sale of the Purchased Assets followed by a distribution of the cash proceeds thereof by Sellers, through the legal chain of entities, to the ultimate recipients thereof. Buyer and Sellers shall file all Tax Returns in accordance with such intended treatment as set forth in this Section 2.4(g) and shall not take any position inconsistent therewith before any governmental agency charged with the collection of any Tax or in any judicial proceeding.

Earn-Out. As additional consideration subject to and in accordance with the remaining provisions of this Section 1.7(d), Parent shall pay an earn-out payment (athe “Earn-Out Payment”), in each case with respect to the Earn-Out Period, if earned, and determined as follows: (i) The aggregate value of the Earn-Out Payment shall be no greater than Ten Million Dollars ($10,000,000), assuming that any shares of Parent Stock issued as an Earn-Out Payment pursuant to a Stock Election are calculated using the EO Share Price, and shall be allocated as follows: (A) the first Two Million Seven Hundred Thousand Dollars ($2,700,000) of any Earn-Out Payment shall be satisfied either by an issuance of Parent Stock or payment in cash, in accordance with the elections described in Section 1.7(e), in an aggregate amount equal in value to Two Million Seven Hundred Thousand Dollars ($2,700,000), and (B) any remaining Earn-Out Payment shall be paid in cash. The Earn-Out Payment set forth in subclause (A) in the preceding sentence shall be allocated based on the Cash Election or Stock Election made (or required to be made) by each Company Stockholder in accordance with the terms of Section 1.7(e); provided, that any portion of such Earn-Out Payment to be paid in Parent Stock pursuant to the Stock Election shall be referred herein as the “Stock Earn-Out Payment”. The “EO Share Price” shall be $9.24 per share. The number of shares of Parent Stock to be issued as Stock Earn-Out Payment pursuant to any Stock Election shall be calculated by dividing the value of the Stock Earn-Out Payment applicable to such Stock Election by the EO Share Price, provided that any fractional shares shall be paid out in cash. Notwithstanding anything to the contrary herein, to comply with applicable securities laws, any Parent Stock to be paid pursuant to a Stock Election to a Company Stockholder who has not confirmed his, her or its accredited investor status with Parent in a manner acceptable to Parent shall be paid an equivalent amount in cash in lieu of any Parent Stock. (ii) If the Integration Plan set forth on Exhibit C has not been completed in all respects in accordance to the terms, conditions and timing set forth therein, or if the CAGR is less than 24%, in each case, the Earn-Out Payment shall be zero. (iii) The determination of the amount of the Earn-Out Payment shall be made by Parent, and written notice thereof together with a calculation of the amount of the Earn-Out Payment, setting forth the components thereof in reasonable detail shall be delivered to the Stockholder Representative (the “Earn-Out Notice”) no later than sixty (60) days following the completion of the Earn-Out Period. (iv) If the Stockholder Representative disagrees with Parent’s determination of the Earn-Out Payment as set forth in the Earn-Out Notice, the Stockholder Representative shall notify Parent in writing of such disagreement within twenty (20) days after delivery of such Earn-Out Notice, which notice shall describe the nature of any such disagreement in reasonable detail and Parent will provide Stockholder Representative with access during regular business hours to books, records, documents and schedules reasonably necessary to determine if such a disagreement exists. During the thirty (30) day period following any notice of disagreement delivered pursuant to the preceding sentence, Parent and the Stockholder Representative shall negotiate in good faith in order to attempt to resolve any such disagreement. If Parent and the Stockholder Representative are unable to resolve such disagreement within the thirty (30) day negotiations period, Parent shall provide the Accounting Arbitrator, which shall be jointly retained by the Stockholder Representative and Parent, with reasonable access to relevant books, records, documents, schedules and workpapers of Parent to the extent reasonably necessary to enable the Accounting Arbitrator to verify Parent’s determination of the Earn-Out Payment; provided, that access shall be provided at reasonable times upon reasonable prior notice to Parent and under reasonable circumstances; provided, further, that such access shall not unreasonably interfere with the business operations of Parent. If the Stockholder Representative fails to deliver such a notice of disagreement in such twenty (20) day period, the Stockholder Representative shall have waived its right to contest, and shall be deemed to have agreed to, the Earn-Out Notice at issue and the Earn-Out Payment amount shown thereon. (v) The Accounting Arbitrator will only consider those issues and matters as to which Parent and the Stockholder Representative have disagreed and shall deliver to Parent and the Stockholder Representative, as promptly as practicable and in any event within sixty (60) Business Days after its appointment, a written report setting forth the resolution of any such disagreement without providing any details regarding the information reviewed by the Accounting Arbitrator. The determination of the Accounting Arbitrator shall be final and binding upon Parent and the Company Stockholders. Judgment may be entered upon the determination of the Accounting Arbitrator in any court having jurisdiction over the party against which such determination is to be enforced. The fees and expenses of the Accounting Arbitrator incurred in the resolution of such disagreements shall be borne one-half by Parent and one-half by the Stockholder Representative on behalf of the Company Stockholders. (vi) Parent acknowledges that the amounts provided for in this Section 1.7(d), if paid, comprise a significant portion of the purchase price. Notwithstanding the foregoing, and for the avoidance of doubt, each Company Stockholder and Participant acknowledges and agrees that the right to payment under this Section 1.7(d) is a contract right and not a security and shall not give rise to any rights or duties (including fiduciary duties), express or implied, other than those expressly set forth herein. Parent agrees that, for so long as the Key Employee is employed pursuant to the Xxxxxx Employment Agreement by Parent or one of its subsidiaries during the Earn-Out Period, such Key Employee shall be entitled to manage the day-to-day operations of the Business, subject to (i) the limitations contained in the Surviving Corporation’s certificate of incorporation and by-laws, this Agreement and the terms of the Xxxxxx Employment Agreement and (ii) oversight by the Chief Executive Officer of Parent and its board of directors consistent with standard corporate governance practices. In furtherance of the foregoing, Parent agrees, and the Company Stockholders acknowledge, that, subject to the foregoing, during the Earn-Out Period the Company shall be operated in the ordinary course of business consistent with the Company’s past practice, and any action by the Company or with respect to the Business that is outside the ordinary course of business consistent with the Company’s past practice shall not be taken without the prior written consent of the Chief Executive Officer of Parent and the Key Employee. In the event that the Key Employee is no longer employed by Parent, mutual agreement shall be evidenced by written consent of the Chief Executive Officer of Parent and a representative selected by the Chief Executive Officer of Parent, with such selection to be subject to the approval of the Stockholder Representative (which approval shall not be unreasonably withheld). During the Earn-Out, Period any actions that would result in (i) material changes to marketing expenditures by the Company, (ii) material changes to the pricing by the Company, (iii) incurrence by the Company of Indebtedness consisting of outstanding amounts under the Credit Facility in excess of an aggregate of $2,500,000 (to the extent that the Chief Executive Officer of Parent has not consented in writing) at any point in time, or (iv) the Company having cash and cash equivalents at any point in time (including any amounts that could be borrowed in compliance with the preceding clause) in an amount less than the amounts maintained prior to the Closing consistent with past practices and the Company’s annual business cycle, shall not be ordinary course of business consistent with past practice. (vii) During the Earn-Out Period and upon completion of the Integration Plan, subject to the calculations of CAGR, if applicable based on such calculations and based on the thresholds set forth in Appendix 1, Parent shall pay the applicable Earn-Out Payment up to the maximum targets at the amounts and in the form of consideration as expressed in Appendix 1 pursuant to the terms and conditions on payment set forth hereunder. (viii) An aggregate amount equal to the Earn-Out Payment, if any, less the Third Party Expenses allocable thereto as shown on the Spreadsheet, shall be paid (or issued, as the case may be) by Parent no later than sixty (60) days following the determination of the Earn-Out Payment, if any, pursuant to this Section 1.7, with such aggregate amount to be allocated among the Company Stockholders and the Participants in accordance with this Section 1.7, the Retention Bonus Plan and the Spreadsheet. (ix) Within forty forty-five (45) days following the end of June and December of each calendar year following Closing through the end of the second (2nd) anniversary of the Closing Date, Purchasers shall provide to Novatel date Parent issues a report setting forth the number of press release with quarterly earnings for each type of Module Product sold fiscal quarter during the respective reporting period and the gross revenue attributable to sales of each of the Module Products during such period. As soon as practicable but not later than forty five (45) days after the second (2nd) anniversary of the Closing Date, Purchasers shall deliver to Novatel a statement (the “Earn-out Revenue Statement”) setting forth the number of each type of Module Product sold during the two (2) year period immediately following the Closing, the gross revenue attributable to sales of each of the Module Products during such two (2) year period, and the aggregate gross revenue from such sales (the “Final Revenue Amount”). (b) Novatel shall have thirty (30) days from the date of receipt of the Earn-out Revenue Statement from Purchasers Out Period, Parent shall provide the Stockholder Representative with a report tracking the Company’s progress with respect to dispute any amount on achieving the Earn-out Revenue Statement, including the Final Revenue Out Amount, by providing written notice to Purchasers of such dispute (a “Dispute Notice”) within such thirty (30) day period. If Novatel provides Purchasers along with a Dispute Notice, the parties shall cooperate in good faith to resolve such dispute as promptly as practicable and shall make available to each any other and any of their respective Representatives as necessary for the review and resolution of the dispute, all relevant books, records and personnel and provide access to actual physical inventory, as information reasonably requested by Purchasers and Novatel, as applicablethe Stockholder Representative. (c) In the event the parties are unable to resolve any dispute regarding the Final Revenue Amount, such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by an independent certified accountant agreed upon by both parties (the “Independent Accountant”) whose written determination as to the Final Revenue Amount shall be conclusive and binding on all parties. All fees and expenses charged by the Independent Accountant shall be shared equally by Purchasers, on the one hand, and Novatel, on the other hand. (d) In the event the Final Revenue Amount, as determined in this Section 1.4, is greater than $40,000,000, Purchasers shall pay to Novatel, by wire transfer of immediately available funds to an account designated by Novatel, an amount in cash equal to (i) the product of (A) the Final Revenue Amount times (B) 0.25, minus (ii) $10,000,000, within five (5) Business Days of the Final Revenue Amount being determined. In the event the Final Revenue Amount, as determined in this Section 1.4, is equal to or less than $40,000,000, no payment shall be made pursuant to this Section 1.4(d). Any payment made by Purchasers to Novatel pursuant to this Section 1.4(d) shall be deemed an adjustment to the Purchase Price.