Common use of Earn-Out Clause in Contracts

Earn-Out. (a) As soon as reasonably practical following the completion of Parent’s audit of its consolidated financial statements for the fiscal year ended December 31, 2015, which shall be prepared in accordance with GAAP and the applicable accounting requirements and the rules and regulations promulgated by the Securities and Exchange Commission, but no later than March 15, 2016, the Company shall prepare and deliver to the Stockholder Representative a statement setting forth the 2015 Actual Revenue (the “Preliminary 2015 Actual Revenue Statement”). The Preliminary 2015 Actual Revenue Statement shall be prepared in accordance with GAAP, applied consistently with the past accounting practices and procedures of Parent. (b) If the Stockholder Representative disputes the Preliminary 2015 Actual Revenue Statement, then the Stockholder Representative shall deliver to Parent a Dispute Notice describing with reasonable detail the basis for any such dispute within thirty (30) calendar days after receiving the Preliminary 2015 Actual Revenue Statement. If the Stockholder Representative does not deliver the Dispute Notice to Parent within such thirty (30) calendar day time period, then the determination of the 2015 Actual Revenue as set forth on the Preliminary 2015 Actual Revenue Statement shall be deemed final and accepted by the Stockholder Representative. Parent and the Stockholder Representative will cooperate and work in good faith to resolve any such dispute themselves. If such dispute is not finally resolved within thirty (30) calendar days after Parent’s receipt of the Dispute Notice, either Parent or the Stockholder Representative may thereafter cause the dispute to be submitted to the Arbitrating Accountant and shall instruct the Arbitrating Accounting to review this Agreement and the disputed items or amounts in determining the 2015 Actual Revenue. Within thirty (30) calendar days after submission to the Arbitrating Accountant for resolution, Parent and the Stockholder Representative shall each indicate in writing their position on each disputed matter and each such party’s determination of the amount of the 2015 Actual Revenue. The Arbitrating Accountant shall make a written determination on each disputed matter no later than sixty (60) calendar days after submission to the Arbitrating Accountant for resolution and such determination will be conclusive and binding upon Parent and the Stockholder Representative with respect to that disputed matter. In conducting its review, the Arbitrating Accountant shall consider only items in dispute, and shall base its determination solely on the written submissions of Parent and the Stockholder Representative (i.e., no independent investigation) and the definitions and methodologies prescribed herein. The fees and expenses of the Arbitrating Accountant shall be paid by one-half by the Company and one-half by the Stockholder Representative. Upon final determination of the Earnout Amount in accordance with this Section 7.2(b), Parent shall distribute (or cause the Escrow Agent, with respect to the Escrowed Earnout Amount, or the Paying Agent, to distribute) the portion of the Earnout Amount otherwise due and payable to the Company Stockholders, Company Optionholders and RSU Holders within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). To the extent the Earnout Amount is less than the Escrowed Earnout Amount, each of Parent and the Stockholder Representative shall direct the Escrow Agent to distribute the Escrowed Earnout Amount, or portion thereof, that is in excess of the Earnout Amount to Parent within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). (c) Through December 31, 2015, the Parent and the Company, will not, and shall cause each of their Affiliates to not, without the prior consent of the Stockholder Representative, (i) materially decrease expenditures to support sales and marketing at the Company below the levels set forth in the 2015 Marketing Support Budget previously furnished by the Company to Parent (the “Marketing Support”), (ii) voluntarily liquidate, dissolve or wind-up the Company or its business, (iii) sell, assign, lease or otherwise transfer (directly or indirectly, in a single transaction or series of related transactions) all or substantially all of the Company or any material amount of assets (tangible or intangible) related to the Company, (iv) enter into or permit to exist any agreement, arrangement or understanding that would restrict or prevent payment of any Earnout Amount when due (other than the Senior Debt as the Senior Debt Documents may be amended or modified) or (iv) take any action for the purpose of reducing or otherwise adversely affecting the Earnout Amount. (d) Through December 31, 2015, the Parent and the Company shall, and shall cause each of their Affiliates to, (i) use commercially reasonable efforts to operate the Company substantially in the ordinary course and generally consistent with past practices; and (ii) work with senior management of the Company to identify, and where appropriate, pursue cross-selling opportunities, including selling the Company’s services to Parent or any of its Affiliates. (e) Except as set forth herein, neither Parent nor the Company shall have any obligations pursuant to this Section 7.2, implied or otherwise, and in furtherance of the foregoing the parties agree and acknowledge that neither Parent nor the Company, nor any of their Affiliates following the Closing will be required to (and none are expected to) make any investment, contribution, payment or capital infusions (in or to the Company or otherwise) to achieve any amount of the 2015 Actual Revenue. The Company and each Company Stockholder by their approval of the Merger agrees and acknowledges that neither Parent, the Company nor any of their Affiliates owes (and each holder of Company Common Stock, Company Stock Options, Restricted Stock Units and Company Preferred Stock waives) any express or implied fiduciary duty or duty of good faith or fair dealing to any of the Company Stockholders, Company Optionholders or RSU Holders with respect to or relating to any matter that affects the 2015 Actual Revenue or the Earnout Amount. The Company and each Company Stockholder, Company Optionholder or RSU Holder acknowledges that (i) upon the closing of the transactions contemplated by this Agreement, Parent has the right to operate the Company and the Parent’s other businesses in any way that Parent deems appropriate in its sole discretion (subject to Section 7.2(c) and (d) above), (ii) Parent has no obligation to operate the Company in order to achieve any Earnout Amount or to maximize the amount of any Earnout Amount (subject to Section 7.2(c) and (d) above), (iii) the Earnout Amount is speculative and is subject to numerous factors outside the control of Parent and the Company, (iv) there is no assurance that any Company Stockholder, Company Optionholder or RSU Holder will receive any Earnout Amount and Parent has not promised nor projected any Earnout Amount, and (v) the parties solely intend the express provisions of this Agreement to govern their contractual relationship. (f) In the event that prior to January 1, 2016, Parent consummates any transaction pursuant to which all or substantially all of the business, properties or assets of Parent are transferred to another person not directly or indirectly controlled by Parent, whether by merger, purchase of assets, tender offer or otherwise (an “Acquisition Transaction”), then the Stockholder Representative shall have the option, in its sole discretion, and in lieu of, and in complete satisfaction of, any Earnout Amount that the Company Stockholders, Company Optionholders and RSU Holders may otherwise be entitled to in accordance with Section 7.2(a), to cause the Parent to distribute (or cause the Paying Agent to distribute) the greater of (i) that portion of the Earnout Amount actually earned through and including the closing date of the Acquisition Transaction, and (ii) the pro-rated portion of Thirteen Million Dollars ($13,000,000), based on the number of days that have elapsed from January 1, 2015 through and including the closing date of the Acquisition Transaction (the “Accelerated Earnout”). To assist the Stockholder Representative in its determination whether to elect to accelerate the Earnout, Parent shall make available to the Stockholder Representative and its Representatives such information and detail relating to the Earnout Amount as is reasonably requested. The Company shall be given notice of the proposed Acquisition Transaction no less than five (5) Business Days following execution of definitive agreements with respect to the Acquisition Transaction, and Stockholder Representative shall notify the Parent of its election to accelerate the Earnout Amount pursuant to this Section 7.2(f) within ten (10) Business Days of receiving notice of such proposed Acquisition Transaction. Any such payment made pursuant to this Section 7.2(f) shall be made as soon as practicable, but in any event within five (5) Business Days following consummation of such Acquisition Transaction.

Earn-Out. 5.1 The Earn Out Amount, if any, shall be: (a) As soon as reasonably practical following the completion of Parent’s audit of its consolidated financial statements for the fiscal year ended December 31, 2015, which shall be prepared calculated in accordance with GAAP this clause 5 and Schedule 5; and (b) paid in instalments by the Buyer annually (if earned) in such amounts as determined in accordance with this clause 5 and Schedule 5 within 90 days of the end of any Earn Out Period, subject to the terms and conditions of this clause 5, by electronic transfer for same day value within ten Business Days after the date on which the relevant Earn Out Amount has become final and binding in accordance with the procedure in this clause 5 and Schedule 5 (“Earn Out Payment”) to the Sellers’ Solicitors’ Bank Account whose written confirmation of receipt shall be sufficient discharge of the Buyer’s obligation to transfer such amount, and the applicable accounting requirements Buyer shall have no duty in connection with the manner in which the Earn Out Amount is allocated among the Sellers or applied in any particular way. 5.2 If, for any Earn Out Period, the Actual Fee Revenue and Actual EBITDA Margin for that Earn Out Period are equal to or greater than the Target Fee Revenue and Target EBITDA Margin respectively for that Earn Out Period, then the Buyer will pay to the Sellers an amount equal to the Actual Fee Revenue for that Earn Out Period multiplied by 8.75% as the Earn Out Payment for that Earn Out Period. 5.3 For the avoidance of doubt and by way of example, if the: (a) Year 1 Actual Fee Revenue or EBITDA Margin are less than the Year 1 Target Fee Revenue or Target EBITDA Margin, then the Buyer will not pay to the Sellers any Earn Out Amount for the Year 1 Earn Out Period (as defined in Schedule 5). (b) Year 2 Actual Fee Revenue and EBITDA Margin are greater than the Year 2 Target Fee Revenue and Target EBITDA Margin, then the Buyer will pay to the Sellers an amount equal to the Year 2 Actual Fee Revenue multiplied by 8.75% as the Earn Out Payment for the Year 2 Earn Out Period (as defined in Schedule 5) notwithstanding the Year 1 Earn Out Period results. 5.4 If at the date upon which any Earn Out Payment would otherwise be payable by the Buyer pursuant to this clause 5 any amount, which has been finally agreed or determined by a court of competent jurisdiction without a right of appeal to be payable to the Buyer pursuant to this Agreement or the Tax Deed, remains unpaid, then having first exhausted the Escrow Account the Buyer shall be entitled to withhold from the Earn Out Payment an amount up to such unpaid amount. Any amount so withheld shall be applied in settlement (in whole or in part) of the amount due to the Buyer, and shall be deemed to be deducted from the amount of the Earn Out Payment due to each Seller pro-rata to each Seller’s aggregate percentage entitlement as set out in column 4 of Schedule 1. 5.5 If at the date upon which an Earn Out Payment would otherwise be payable by the Buyer pursuant to this clause 5 there are unresolved or unpaid claims of the Buyer pursuant to this Agreement or the Tax Deed, including any Claim or Escrow Claim, the Buyer shall be entitled to withhold from the Earn Out Payment an amount (a “Retained Amount”) equal to the lesser of (i) the amount of the Earn Out Payment otherwise due and (ii) the amount of such unresolved or unpaid claim plus the Buyer’s reasonable estimate of the costs and expenses, including reasonable legal costs relating to such claim as determined under clause 5.6; provided that following final agreement or determination of such claim (whether by a binding settlement or a judgement or arbitration award to which there is no further appeal) then to the extent that the amount of the Earn Out Payment withheld by the Buyer exceeds the amount agreed or determined to be due to the Buyer in respect of the unresolved or unpaid claim, the Buyer shall promptly pay such excess to the Sellers. In the event that the Buyer agrees with the Sellers that it will not pursue any claim in respect of which any Retained Amount has been withheld, the Buyer shall pay to the Sellers (by payment to the Sellers’ Solicitors) the full amount of the Retained Amount in respect of such claim promptly following such agreement. Any Retained Amount shall be deemed to be deducted from the amount of the Earn Out Payment due to each Seller pro-rata to each Seller’s aggregate percentage entitlement as set out in column 3 of Schedule 1. 5.6 If on any day not more than 30 days before an Earn Out Payment is due to be paid and the rules Buyer and regulations promulgated the Sellers shall not have reached agreement as to the amount which may be retained pursuant to clause 5.5 in respect of any Claim or Escrow Claim, then the question of the amount which may be retained may be referred by either the Buyer or the Sellers to an independent counsel of appropriate experience and standing to be appointed by the Securities Buyer and Exchange Commission, but no later than March 15, 2016, the Company Sellers or (in default of agreement within five Business Days of any proposal for the appointment of such counsel) by the chairman for the time being of the Council of the Bar on the application of either the Buyer or the Sellers; and the decision of such counsel (who shall be deemed to be acting as an expert and not as an arbitrator) shall be final and binding on the parties and the cost of such reference shall be paid by the Buyer and the Sellers in equal shares or in such other proportions as such counsel shall determine. In relation to a determination to be made under this clause 5.6 the provisions of clause 7.6 shall mutatis mutandis apply. 5.7 The Buyer shall within 60 Business Days after the end of each Earn Out Period prepare and deliver to the Stockholder Representative Sellers a statement setting forth of the 2015 Actual Fee Revenue and EBITDA Margin for that Earn Out Period determined in accordance with paragraph 2(a) of Schedule 5 and based on that a provisional calculation of the Earn Out Amount for that Earn Out Period (the “Preliminary 2015 Actual Revenue Earn Out Statement”). The Preliminary 2015 Actual Revenue Each Earn Out Statement shall be prepared in accordance with GAAPSchedule 5. The Sellers shall by the fifth Business Day after receipt of the Earn Out Statement send the Buyer an acknowledgement of receipt. If the Sellers fail to issue an acknowledgement of receipt by such time then it shall, applied consistently for the purposes of this clause 5.7 be deemed to have issued an acknowledgement of receipt on the fifth Business Day after it receives the Earn Out Statement. 5.8 If within 15 Business Days following the acknowledgement of receipt of an Earn Out Statement by the Sellers, the Sellers have not given the Buyer written notice of his objection to the Earn Out Statement (which notice shall state in detail the basis of the Sellers’ objection) then the Earn Out Statement shall be binding and conclusive on the parties subject to final adjustment in accordance with paragraph 2(b) of Schedule 5. 5.9 If the Sellers give the Buyer written notice of their objection to an Earn Out Statement within 15 Business Days following the acknowledgement of receipt of an Earn Out Statement by the Sellers and if the Sellers and the Buyer fail to resolve the issues outstanding with respect to the determination of the Earn Out Statement within 15 Business Days after the Buyer’s receipt of the Sellers’ notice of objection either the Sellers or the Buyer may at any time after that date refer the matter or matters in dispute to such independent firm of certified public accountants as they shall agree or, in default of agreement within 10 days of any proposal for the appointment of such accountants, as shall be appointed by the AICPA on the application of either these or the Buyer. 5.10 The independent firm of certified public accountants referred to in clause 5.9 shall be an internationally recognised accounting firm in both the UK and USA and shall determine the matter or matters in dispute acting as experts not as arbitrators and their decision shall be final and binding and accordingly the Accountant Determined Earn Out Amount shall be the amount of the Earn Out Payment for that Earn Out Period. Such independent firm of certified public accountants shall be instructed to deliver their determination as soon as practicable to the Sellers and the Buyer. 5.11 The Sellers and the Buyer agree that they shall instruct any accountants appointed under clause 5.9 to determine only the particular aspect of the preparation of the Earn Out Statement in dispute and, accordingly, such accountants shall not determine or adjust any other matter or have regard to any fact not directly relating to the matter in dispute. 5.12 The fees of the accountant appointed pursuant to this clause 5 shall be paid by the Buyer on the one hand and the Sellers on the other hand in equal shares or as the accountant may determine. 5.13 If either the Sellers or the Buyer fails to pay such fees of the accountants appointed under clause 5.9 in accordance with the past accounting practices provisions of clause 5.12, the other party may in its absolute discretion pay such fees on the non-paying party’s behalf and procedures the non-paying party shall reimburse the other on demand all costs and expenses incurred by the other in so doing. 5.14 The Earn Out Payments are contingent on the performance of Parentthe business of the Company and accordingly the Sellers accept that there may be no Earn Out Payments. No Member of the Buyer Group makes any representation or warranty of any kind nor expresses any opinion as to the likelihood or the amount of any Earn Out Payment. So long as each of them is subject to their Service Agreement, the Sellers shall continue to be entitled to manage the day-to-day business of the Company, provided that they acknowledge, understand and agree that, after Completion the Buyer shall subject to clause 5.15 exercise ultimate operational control over the business and assets of the Company, provided that Xxxxx Xxxxx will have authority to hire staff consistent with the business plan (as approved by the Buyer) provided that the cost of such hires is funded out of the Company’s cash flow. 5.15 The Sellers acknowledge, understand and agree that no Member of the Buyer Group has a duty to the Sellers to use any level of efforts to do any action or thing which would or might increase the Actual EBITDA or Actual Fee Revenue of the Company for any part of the Relevant Period. However: (a) no Member of the Buyer Group will knowingly interfere with or do anything the sole or main purpose of which is to materially impair or adversely diminish the Actual EBITDA or Actual Fee Revenue of the Company for any part of the Relevant Period; and (b) If to the Stockholder Representative disputes extent that any Member of the Preliminary 2015 Group does any action or thing which could materially impair or adversely diminish the Actual EBITDA or Actual Fee Revenue Statement, then the Stockholder Representative shall deliver to Parent a Dispute Notice describing with reasonable detail the basis for any such dispute within thirty (30) calendar days after receiving the Preliminary 2015 Actual Revenue Statement. If the Stockholder Representative does not deliver the Dispute Notice to Parent within such thirty (30) calendar day time period, then the determination part of the 2015 Actual Revenue as set forth on Relevant Period, the Preliminary 2015 Actual Revenue Statement Buyer (via Holdco’s CEO) shall be deemed final and accepted by the Stockholder Representative. Parent and the Stockholder consult with Sellers’ Representative will cooperate and work in good faith in order to resolve any agree upon such dispute themselves. If reasonable adjustments or add-backs to the Earn-Out Amount so as to take into account the impact of such dispute is not finally resolved within thirty (30) calendar days after Parent’s receipt action or thing on the Actual EBITDA or Actual Fee Revenue of the Dispute NoticeCompany for such period. 5.16 As soon as reasonably practicable after and in any event within six months of Completion (or such other date as the parties may agree in writing) the Sellers’ Representative, either Parent or with assistance from the Stockholder Buyer as is reasonably necessary (including full access to Consulting Business Partners and Consulting Business Principals, their associated financial performance and client records), shall prepare and deliver an Integration Plan to Holdco’s CEO which shall include, inter alia, the following items: (a) details of those Consulting Business Partners and Consulting Business Principals who the Seller Representative may thereafter cause believes should be transferred from the dispute to be submitted Consulting Business to the Arbitrating Accountant and shall instruct Company; (b) proposals for the Arbitrating Accounting to review this Agreement and the disputed items or amounts in determining the 2015 Actual Revenue. Within thirty (30) calendar days after submission to the Arbitrating Accountant for resolution, Parent and the Stockholder Representative shall each indicate in writing their position on each disputed matter and each such party’s determination implementation of the amount Integration Plan, including proposed members of the 2015 Actual Revenue. The Arbitrating Accountant shall make a written determination on each disputed matter no later than sixty (60) calendar days after submission to the Arbitrating Accountant for resolution and such determination will be conclusive and binding upon Parent and the Stockholder Representative with respect to that disputed matter. In conducting its review, the Arbitrating Accountant shall consider only items in dispute, and shall base its determination solely on the written submissions of Parent and the Stockholder Representative (i.e., no independent investigation) and the definitions and methodologies prescribed herein. The fees and expenses of the Arbitrating Accountant shall be paid by one-half by the Company and one-half by the Stockholder Representative. Upon final determination of the Earnout Amount in accordance with this Section 7.2(b), Parent shall distribute (or cause the Escrow Agent, with respect to the Escrowed Earnout Amount, or the Paying Agent, to distribute) the portion of the Earnout Amount otherwise due and payable to the Company Stockholders, Company Optionholders and RSU Holders within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). To the extent the Earnout Amount is less than the Escrowed Earnout Amount, each of Parent and the Stockholder Representative shall direct the Escrow Agent to distribute the Escrowed Earnout Amount, or portion thereof, that is in excess of the Earnout Amount to Parent within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b).commercial Integration team; (c) Through December 31, 2015, the Parent and the Company, will not, and shall cause each details of their Affiliates all out-of-pocket costs that are to not, without the prior consent of the Stockholder Representative, (i) materially decrease expenditures to support sales and marketing at the Company below the levels set forth be incurred in the 2015 Marketing Support Budget previously furnished by process of preparing the Company Integration Plan, such expenses to Parent (be approved in accordance with the “Marketing Support”), (ii) voluntarily liquidate, dissolve or wind-up agreed procedure so as not to impact on the Company or its business, (iii) sell, assign, lease or otherwise transfer (directly or indirectly, in a single transaction or series of related transactions) all or substantially all of the Company or any material amount of assets (tangible or intangible) related to the Company, (iv) enter into or permit to exist any agreement, arrangement or understanding that would restrict or prevent payment of any Earnout Amount when due (other than the Senior Debt as the Senior Debt Documents may be amended or modified) or (iv) take any action for the purpose of reducing or otherwise adversely affecting the Earnout Amount.Target EBITDA Margin; and (d) Through December 31, 2015, proposals for funding the Parent and Company’s bonus pool on the Company shall, and shall cause each of their Affiliates to, Integration Date for both (i) use commercially reasonable efforts to operate the Company substantially in the ordinary course and generally consistent with past practices; and (ii) work with senior management current employees of the Company to identify, and where appropriate, pursue cross-selling opportunities, including selling the Company’s services to Parent or any of its Affiliates. (e) Except as set forth herein, neither Parent nor the Company shall have any obligations pursuant to this Section 7.2, implied or otherwise, and in furtherance of the foregoing the parties agree and acknowledge that neither Parent nor the Company, nor any of their Affiliates following the Closing will be required to (and none are expected to) make any investment, contribution, payment or capital infusions (in or to the Company or otherwise) to achieve any amount of the 2015 Actual Revenue. The Company and each Company Stockholder by their approval of the Merger agrees and acknowledges that neither Parent, the Company nor any of their Affiliates owes (and each holder of Company Common Stock, Company Stock Options, Restricted Stock Units and Company Preferred Stock waives) any express or implied fiduciary duty or duty of good faith or fair dealing to any of the Company Stockholders, Company Optionholders or RSU Holders with respect to or relating to any matter that affects the 2015 Actual Revenue or the Earnout Amount. The Company and each Company Stockholder, Company Optionholder or RSU Holder acknowledges that (i) upon the closing of the transactions contemplated by this Agreement, Parent has the right to operate the Company and the Parent’s other businesses in any way that Parent deems appropriate in its sole discretion (subject to Section 7.2(c) and (d) above), (ii) Parent has no obligation to operate the Company in order to achieve any Earnout Amount or to maximize the amount of any Earnout Amount (subject to Section 7.2(c) and (d) above), (iii) the Earnout Amount is speculative and is subject to numerous factors outside the control of Parent and the Company, (iv) there is no assurance that any Company Stockholder, Company Optionholder or RSU Holder will receive any Earnout Amount and Parent has not promised nor projected any Earnout Amount, and (v) the parties solely intend the express provisions of this Agreement to govern their contractual relationship. (f) In the event that prior to January 1, 2016, Parent consummates any transaction pursuant to which all or substantially all of the business, properties or assets of Parent are transferred to another person not directly or indirectly controlled by Parent, whether by merger, purchase of assets, tender offer or otherwise (an “Acquisition Transaction”), then the Stockholder Representative shall have the option, in its sole discretion, and in lieu of, and in complete satisfaction of, any Earnout Amount that the Company Stockholders, Company Optionholders and RSU Holders may otherwise be entitled to in accordance with Section 7.2(a), to cause the Parent to distribute (or cause the Paying Agent to distribute) the greater of (i) that portion of the Earnout Amount actually earned through and including the closing date of the Acquisition Transaction, and (ii) the pro-rated portion of Thirteen Million Dollars ($13,000,000)newly transferred employees from the Consulting Business and related business plan, on the assumption that variable compensation for all employees employed by the Company after the Integration Date will be based on the number of days that have elapsed Company’s current plan (subject to amendment from January 1, 2015 through and including the closing date of the Acquisition Transaction (the “Accelerated Earnout”time to time). To assist the Stockholder Representative in its determination whether to elect to accelerate the Earnout, Parent shall make available to the Stockholder Representative and its Representatives such information and detail relating to the Earnout Amount as is reasonably requested. The Company shall be given notice of the proposed Acquisition Transaction no less than five (5) Business Days following execution of definitive agreements with respect to the Acquisition Transaction, and Stockholder Representative shall notify the Parent of its election to accelerate the Earnout Amount pursuant to this Section 7.2(f) within ten (10) Business Days of receiving notice of such proposed Acquisition Transaction. Any such payment made pursuant to this Section 7.2(f) shall be made as . 5.17 As soon as practicable, but reasonably practicable and in any event within five (5) Business Days following consummation 30 days of the delivery of such Acquisition TransactionIntegration Plan, Holdco’s CEO and the Sellers’ Representative shall meet to discuss and agree such plan, subject to such amendments as the Buyer (via Holdco’s CEO) and the Sellers’ Representative shall mutually agree, including with regard to timing and process for implementing the Integration Plan in accordance with clause 5.16(b). 5.18 Upon mutual approval of any Integration Plan by the parties, the Buyer and the Sellers shall co-operate in good faith to implement such Integration Plan according to the timeline set out in such Integration Plan. If the parties agree that such Integration Plan is deemed to materially adversely affect Actual EBITDA Margin or Actual Fee Revenue of the Company for any part of the Earn Out Periods, the Buyer will work with the Sellers, acting in good faith, to make such reasonable adjustments to the Earn-Out Amount so as to take into account the impact of the Integration Plan on the Earn Out Amount for any part of the Earn Out Periods. 5.19 Upon mutual agreement that the Integration Plan has been implemented in accordance with its terms, the Sellers and the Buyer shall either adopt the Revised Earn Out by the Revised Earn Out Date or the Final Earn Out Date or, if the parties do not agree to the Revised Earn Out in accordance with Schedule 5, the Buyer has the option to exercise the Earn Out Buyout (subject to the further provisions set out in Schedule 5). 5.20 The parties agree that the Company’s bonus scheme in the agreed form will apply from Completion, subject to the express provision therein permitting the Buyer to amend, substitute or terminate the bonus scheme at its discretion.

Earn-Out. (a) As soon as reasonably practical Subject to the provisions of this Section 2.7, following the completion of Parent’s audit of its consolidated financial statements for the fiscal year ended December 31Closing Buyer shall pay or cause to be paid to Seller a payment based on 2007 Revenue, 20152008 Revenue and 2009 Revenue, which shall be prepared in accordance with GAAP and the applicable accounting requirements and the rules and regulations promulgated by the Securities and Exchange Commissionas applicable, but no as follows: (i) No later than March 15April 30, 20162008, the Company Buyer shall prepare and deliver to the Stockholder Representative Seller (i) a statement setting forth in reasonable detail the 2015 Actual Revenue 2007 Revenues and the amount of the 2007 Earnout Payment, if any, and (ii) a certificate of Buyer’s Chief Financial Officer or other officer of Buyer certifying on behalf of Buyer that the calculation of 2007 Revenues and the 2007 Earnout Payment, if any, was made in accordance with the terms of this Section 2.7 (such statement and certificate being referred to as the “Preliminary 2015 Actual Revenue Statement2007 Earnout Certificate”). The Preliminary 2015 Actual Revenue Statement If the 2007 Earnout Certificate provides that Seller is entitled to a 2007 Earnout Payment, Buyer shall be prepared make such 2007 Earnout Payment to Seller on or prior to the date that is 30 days following delivery of the 2007 Earnout Certificate. (ii) No later than April 30, 2009, Buyer shall prepare and deliver to Seller (i) a statement setting forth in reasonable detail the 2008 Revenues and the amount of the 2008 Earnout Payment, if any, and (ii) a certificate of Buyer’s Chief Financial Officer or other officer of Buyer certifying on behalf of Buyer that the calculation of 2008 Revenues and the 2008 Earnout Payment, if any, was made in accordance with GAAPthe terms of this Section 2.7 (such statement and certificate being referred to as the “2008 Earnout Certificate”). If the Earnout Certificate provides that Seller is entitled to a 2008 Earnout Payment, applied consistently Buyer shall make such 2008 Earnout Payment to Seller on or prior to the date that is 30 days following delivery of the 2008 Earnout Certificate. (iii) No later than April 30, 2010, Buyer shall prepare and deliver to Seller (i) a statement setting forth in reasonable detail the 2009 Revenues and the amount of the 2009 Earnout Payment, if any, and (ii) a certificate of Buyer’s Chief Financial Officer or other officer of Buyer certifying on behalf of Buyer that the calculation of 2009 Revenues and the 2009 Earnout Payment, if any, was made in accordance with the past accounting practices terms of this Section 2.7 (such statement and procedures certificate being referred to as the “2009 Earnout Certificate”). If the Earnout Certificate provides that Seller is entitled to a 2009 Earnout Payment, Buyer shall make such 2009 Earnout Payment to Seller on or prior to the date that is 30 days following delivery of Parentthe 2009 Earnout Certificate. (b) If the Stockholder Representative disputes the Preliminary 2015 Actual Revenue Statement, then the Stockholder Representative shall deliver Prior to Parent a Dispute Notice describing with reasonable detail the basis for any such dispute within thirty (30) calendar days after receiving the Preliminary 2015 Actual Revenue Statement. If the Stockholder Representative does not deliver the Dispute Notice to Parent within such thirty (30) calendar day time period, then the determination of the 2015 Actual Revenue as set forth on the Preliminary 2015 Actual Revenue Statement shall be deemed final and accepted by the Stockholder Representative. Parent and the Stockholder Representative will cooperate and work in good faith to resolve any such dispute themselves. If such dispute is not finally resolved within thirty (30) calendar days after Parent’s receipt of the Dispute Notice, either Parent or the Stockholder Representative may thereafter cause the dispute to be submitted to the Arbitrating Accountant and shall instruct the Arbitrating Accounting to review this Agreement and the disputed items or amounts in determining the 2015 Actual Revenue. Within thirty (30) calendar days after submission to the Arbitrating Accountant for resolution, Parent and the Stockholder Representative shall each indicate in writing their position on each disputed matter and each such party’s determination of the amount of the 2015 Actual Revenue. The Arbitrating Accountant shall make a written determination on each disputed matter no later than sixty (60) calendar days after submission to the Arbitrating Accountant for resolution and such determination will be conclusive and binding upon Parent and the Stockholder Representative with respect to that disputed matter. In conducting its review, the Arbitrating Accountant shall consider only items in dispute, and shall base its determination solely on the written submissions of Parent and the Stockholder Representative (i.e., no independent investigation) and the definitions and methodologies prescribed herein. The fees and expenses of the Arbitrating Accountant shall be paid by one-half by the Company and one-half by the Stockholder Representative. Upon final determination of the Earnout Amount in accordance with this Section 7.2(b), Parent shall distribute (or cause the Escrow Agent, with respect to the Escrowed Earnout Amount, or the Paying Agent, to distribute) the portion of the Earnout Amount otherwise due and payable to the Company Stockholders, Company Optionholders and RSU Holders within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). To the extent the Earnout Amount is less than the Escrowed Earnout Amount, each of Parent and the Stockholder Representative shall direct the Escrow Agent to distribute the Escrowed Earnout Amount, or portion thereof, that is in excess of the Earnout Amount to Parent within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). (c) Through December 31, 20152007, Seller shall provide Buyer with Seller’s calculation of Seller’s portion of 2007 Revenue. Seller shall have an opportunity to review the Parent and 2007 Earnout Certificate, 2008 Earnout Certificate or 2009 Earnout Certificate, as the Companycase may be, will not, and shall cause each for a period of their Affiliates to not, without the prior consent 30 days following delivery of the Stockholder Representative, (i) materially decrease expenditures to support sales and marketing at the Company below the levels set forth in the 2015 Marketing Support Budget previously furnished by the Company to Parent such certificate (the “Marketing SupportReview Period”), (ii) voluntarily liquidateduring which period Seller and Seller’s representatives shall have reasonable access, dissolve or wind-up the Company or its businessduring normal business hours and upon reasonable notice, (iii) sell, assign, lease or otherwise transfer (directly or indirectly, in a single transaction or series of related transactions) all or substantially all of the Company or any material amount of assets (tangible or intangible) related to the Company, (iv) enter into or permit to exist any agreement, arrangement or understanding that would restrict or prevent payment books and records of any Earnout Amount when due (other than the Senior Debt as the Senior Debt Documents may be amended or modified) or (iv) take any action Buyer and Buyer’s financial and accounting personnel for the purpose of reducing confirming the calculations and information contained in the 2007 Earnout Certificate, 2008 Earnout Certificate or otherwise adversely affecting 2009 Earnout Certificate, as the Earnout Amount. (d) Through December 31, 2015, case may be. All information obtained by Seller shall be deemed confidential information subject to the Parent and the Company shall, restrictions of an appropriate confidentiality agreement and shall cause each not be disclosed or made use of their Affiliates to, (i) use commercially reasonable efforts to operate in any manner by Seller other than for the Company substantially in the ordinary course and generally consistent with past practices; and (ii) work with senior management limited purpose of the Company to identify, and where appropriate, pursue cross-selling opportunities, including selling the Companyenforcing Seller’s services to Parent or any of its Affiliates. (e) Except as set forth herein, neither Parent nor the Company shall have any obligations pursuant to this Section 7.2, implied or otherwise, and in furtherance of the foregoing the parties agree and acknowledge that neither Parent nor the Company, nor any of their Affiliates following the Closing will be required to (and none are expected to) make any investment, contribution, payment or capital infusions (in or to the Company or otherwise) to achieve any amount of the 2015 Actual Revenue. The Company and each Company Stockholder by their approval of the Merger agrees and acknowledges that neither Parent, the Company nor any of their Affiliates owes (and each holder of Company Common Stock, Company Stock Options, Restricted Stock Units and Company Preferred Stock waives) any express or implied fiduciary duty or duty of good faith or fair dealing to any of the Company Stockholders, Company Optionholders or RSU Holders with respect to or relating to any matter that affects the 2015 Actual Revenue or the Earnout Amount. The Company and each Company Stockholder, Company Optionholder or RSU Holder acknowledges that (i) upon the closing of the transactions contemplated by rights under this Agreement, Parent has the right to operate the Company and the Parent’s other businesses in any way that Parent deems appropriate in its sole discretion (subject to Section 7.2(c) and (d) above), (ii) Parent has no obligation to operate the Company in order to achieve any Earnout Amount or to maximize the amount of any Earnout Amount (subject to Section 7.2(c) and (d) above), (iii) the Earnout Amount is speculative and is subject to numerous factors outside the control of Parent and the Company, (iv) there is no assurance that any Company Stockholder, Company Optionholder or RSU Holder will receive any Earnout Amount and Parent has not promised nor projected any Earnout Amount, and (v) the parties solely intend the express provisions of this Agreement to govern their contractual relationship. (f) In the event that prior to January 1, 2016, Parent consummates any transaction pursuant to which all or substantially all of the business, properties or assets of Parent are transferred to another person not directly or indirectly controlled by Parent, whether by merger, purchase of assets, tender offer or otherwise (an “Acquisition Transaction”), then the Stockholder Representative shall have the option, in its sole discretion, and in lieu of, and in complete satisfaction of, any Earnout Amount that the Company Stockholders, Company Optionholders and RSU Holders may otherwise be entitled to in accordance with Section 7.2(a), to cause the Parent to distribute (or cause the Paying Agent to distribute) the greater of (i) that portion of the Earnout Amount actually earned through and including the closing date of the Acquisition Transaction, and (ii) the pro-rated portion of Thirteen Million Dollars ($13,000,000), based on the number of days that have elapsed from January 1, 2015 through and including the closing date of the Acquisition Transaction (the “Accelerated Earnout”). To assist the Stockholder Representative in its determination whether to elect to accelerate the Earnout, Parent shall make available to the Stockholder Representative and its Representatives such information and detail relating to the Earnout Amount as is reasonably requested. The Company shall be given notice of the proposed Acquisition Transaction no less than five (5) Business Days following execution of definitive agreements with respect to the Acquisition Transaction, and Stockholder Representative shall notify the Parent of its election to accelerate the Earnout Amount pursuant to this Section 7.2(f) within ten (10) Business Days of receiving notice of such proposed Acquisition Transaction. Any such payment made pursuant to this Section 7.2(f) shall be made as soon as practicable, but in any event within five (5) Business Days following consummation of such Acquisition Transaction.

Earn-Out. (a) As soon as reasonably practical following additional Merger Consideration, Parent will pay to each Earn Out Recipient the completion portion of Parent’s audit of its consolidated financial statements the Earn Out Amount for the fiscal year ended December 31applicable Calculation Period, 2015if any, which that such Earn Out Recipient is entitled to receive. The Earn Out Amount will be distributed ratably to the Earn Out Recipients as follows: (i) Each holder of Company Common Shares shall receive an amount per Company Common Share equal to: (i) if the Per Share Applicable Earn Out Merger Consideration is greater than the Exercise Price, then (x) the sum of (1) the Applicable Earn Out Merger Consideration, divided by the Aggregate Shares and (2) the product of the Exercise Price multiplied by the number of shares underlying the Company Options and the Company Warrants outstanding and unexercised immediately prior to the Effective Time, divided by the number of Company Common Shares issued and outstanding immediately prior to the Effective Time, (y) less any Applicable Earn Out Merger Consideration previously received in respect of such Company Common Share, and (ii) if the Per Share Applicable Earn Out Merger Consideration is not greater than the Exercise Price, then (x) the Applicable Earn Out Merger Consideration, divided by the number of Company Common Shares issued and outstanding immediately prior to the Effective Time, (y) less any Applicable Earn Out Merger Consideration previously received in respect of such Company Common Share. (ii) Each holder of Company Options and Company Warrants shall receive an amount per share with respect to the shares underlying the Company Options (treating all such shares as vested) and Company Warrants, as applicable, equal to: (i) if such holder of Company Options or Company Warrants has received any prior distribution of Applicable Earn Out Merger Consideration, then (x) the Applicable Earn Out Merger Consideration, divided by the Aggregate Shares, (y) less any Applicable Earn Out Merger Consideration previously received in respect of such underlying share, and (ii) if such holder of Company Options or Company Warrants has not received any prior distribution of Applicable Earn Out Merger Consideration, then (x) if the Per Share Applicable Earn Out Merger Consideration is greater than the Exercise Price, then (1) the Applicable Earn Out Merger Consideration, divided by the Aggregate Shares, (2) less the Exercise Price, and (y) if the Per Share Applicable Earn Out Merger Consideration is not greater than the Exercise Price, then no amount shall be prepared received in accordance with GAAP and the applicable accounting requirements and the rules and regulations promulgated by the Securities and Exchange Commission, but no later than March 15, 2016, the Company shall prepare and deliver to the Stockholder Representative a statement setting forth the 2015 Actual Revenue (the “Preliminary 2015 Actual Revenue Statement”). The Preliminary 2015 Actual Revenue Statement shall be prepared in accordance with GAAP, applied consistently with the past accounting practices and procedures respect of Parentsuch underlying share. (b) If Within seventy-five (75) days of the end of each Calculation Period, Parent will deliver to Stockholder Representative disputes a schedule setting forth in reasonable detail Parent’s calculation of the Preliminary 2015 Actual Revenue StatementAdjusted Earnings or Revenue, then as applicable, for such Calculation Period (each, a “Proposed Earn Out Calculation”). The Proposed Earn Out Calculation will be subject to Stockholder Representative’s review. In reviewing the Proposed Earn Out Calculation, Stockholder Representative shall deliver will have the right to communicate with, and to review the work papers, schedules, memoranda and other relevant books, records and documents Parent prepared or reviewed in determining the Proposed Earn Out Calculation for such Calculation Period, all to the extent Stockholder Representative reasonably requires to complete its review of the Proposed Earn Out Calculation. Unless Stockholder Representative delivers to Parent a Dispute Notice describing with reasonable detail the basis for any such dispute within thirty fifteen (3015) calendar days after receiving its receipt of the Preliminary 2015 Actual Revenue StatementProposed Earn Out Calculation from Parent a written notice describing any dispute with the Proposed Earn Out Calculation (a “Dispute Notice”), the Proposed Earn Out Calculation for the applicable Calculation Period will be conclusive and binding on Parent and the Earn Out Recipients with respect to the Earn Out Amount for the applicable Calculation Period. If the Stockholder Representative does not deliver the Dispute Notice to Parent within such thirty (30) calendar day time period, then the determination of the 2015 Actual Revenue as set forth on the Preliminary 2015 Actual Revenue Statement shall be deemed final and accepted by the Stockholder Representative. Parent and the Stockholder Representative will cooperate and work in good faith to resolve any such dispute themselves. If such dispute is not finally resolved within thirty (30) calendar days after Parent’s receipt of the timely delivers a Dispute Notice, either Parent or the Stockholder Representative may thereafter cause Parties will follow the dispute to be submitted to the Arbitrating Accountant and shall instruct the Arbitrating Accounting to review this Agreement and the disputed items or amounts in determining the 2015 Actual Revenue. Within thirty (30) calendar days after submission to the Arbitrating Accountant for resolution, Parent and the Stockholder Representative shall each indicate in writing their position on each disputed matter and each such party’s determination of the amount of the 2015 Actual Revenue. The Arbitrating Accountant shall make a written determination on each disputed matter no later than sixty (60) calendar days after submission to the Arbitrating Accountant procedures for resolution and such determination will be conclusive and binding upon Parent and the Stockholder Representative with respect to that disputed matter. In conducting its review, the Arbitrating Accountant shall consider only items of disputes set forth in dispute, and shall base its determination solely on the written submissions of Parent and the Stockholder Representative (i.e., no independent investigation) and the definitions and methodologies prescribed herein. The fees and expenses of the Arbitrating Accountant shall be paid by one-half by the Company and one-half by the Stockholder Representative. Upon final determination of the Earnout Amount in accordance with this Section 7.2(b), Parent shall distribute (or cause the Escrow Agent, with respect to the Escrowed Earnout Amount, or the Paying Agent, to distribute) the portion of the Earnout Amount otherwise due and payable to the Company Stockholders, Company Optionholders and RSU Holders within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). To the extent the Earnout Amount is less than the Escrowed Earnout Amount, each of Parent and the Stockholder Representative shall direct the Escrow Agent to distribute the Escrowed Earnout Amount, or portion thereof, that is in excess of the Earnout Amount to Parent within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b)11.5. (c) Through December 31, 2015, the Parent and the Company, will not, and shall cause each of their Affiliates to not, without the prior consent Within twenty (20) business days of the Stockholder Representativedetermination of the Adjusted Earnings or Revenue, as applicable, under this Section 11.1 or Section 11.5, Parent will pay to each Earn Out Recipient an amount equal to the portion of the applicable Earn Out Amount that such Earn Out Recipient is entitled to receive. (id) materially decrease expenditures Notwithstanding anything to support sales and marketing at the Company below the levels set forth contrary contained herein, in the 2015 Marketing Support Budget previously furnished by the Company to Parent (the “Marketing Support”), (ii) voluntarily liquidate, dissolve or wind-up event that the Company or its businessParent, (iii) sellor any direct or indirect parent entity of the Company or Parent, assignor any of their respective partners, lease members or otherwise transfer (directly stockholders, consummate, or indirectlycause to be consummated, in a single transaction or series of related transactionstransactions pursuant to which (i) all or substantially all of the Company or any material amount of assets (tangible or intangible) related to the Company, (iv) enter into or permit to exist any agreement, arrangement or understanding that would restrict or prevent payment of any Earnout Amount when due (other than the Senior Debt as the Senior Debt Documents may be amended or modified) or (iv) take any action for the purpose of reducing or otherwise adversely affecting the Earnout Amount. (d) Through December 31, 2015, the Parent and the Company shall, and shall cause each of their Affiliates to, (i) use commercially reasonable efforts to operate the Company substantially in the ordinary course and generally consistent with past practices; and (ii) work with senior management of the Company are sold or transferred to identify, and where appropriate, pursue crossa non-selling opportunities, including selling the Company’s services to Parent or any Affiliate of its Affiliates. (e) Except as set forth herein, neither Parent nor the Company shall have any obligations pursuant to this Section 7.2, implied or otherwise, and in furtherance of the foregoing the parties agree and acknowledge that neither Parent nor the Company, nor any of their Affiliates following the Closing will be required to (and none are expected to) make any investment, contribution, payment or capital infusions (in or to the Company or otherwise) to achieve any amount of the 2015 Actual Revenue. The Company and each Company Stockholder by their approval of the Merger agrees and acknowledges that neither Parent, the Company nor any of their Affiliates owes (and each holder of Company Common Stock, Company Stock Options, Restricted Stock Units and Company Preferred Stock waives) any express or implied fiduciary duty or duty of good faith or fair dealing to any of the Company Stockholders, Company Optionholders or RSU Holders with respect to or relating to any matter that affects the 2015 Actual Revenue or the Earnout Amount. The Company and each Company Stockholder, Company Optionholder or RSU Holder acknowledges that (i) upon the closing of the transactions contemplated by this Agreement, Parent has the right to operate the Company and the Parent’s other businesses in any way that Parent deems appropriate in its sole discretion (subject to Section 7.2(c) and (d) above), (ii) Parent has no obligation or Affiliates thereof cease to operate hold, directly or indirectly, a majority of the equity interests of the Company in order to achieve any Earnout Amount (whether by merger, consolidation, acquisition of equity interests or to maximize the amount of any Earnout Amount (subject to Section 7.2(c) and (d) above), (iii) the Earnout Amount is speculative and is subject to numerous factors outside the control of Parent and the Company, (iv) there is no assurance that any Company Stockholder, Company Optionholder or RSU Holder will receive any Earnout Amount and Parent has not promised nor projected any Earnout Amount, and (v) the parties solely intend the express provisions of this Agreement to govern their contractual relationship. (f) In the event that prior to January 1, 2016, Parent consummates any transaction pursuant to which all or substantially all of the business, properties or assets of Parent are transferred to another person not directly the Company or indirectly controlled by Parentotherwise, whether by merger, purchase of assets, tender offer or otherwise (an a “Acquisition TransactionDivestiture”), then the Stockholder Representative shall have the optionuntil all obligations of Parent under this ARTICLE 11 are completed, Parent will require any successor to Parent in connection with a Divestiture to assume and agree to perform this Agreement, in its sole discretion, the same manner and in lieu of, and in complete satisfaction of, any Earnout Amount that the Company Stockholders, Company Optionholders and RSU Holders may otherwise be entitled to in accordance with Section 7.2(a), to cause the Parent to distribute (or cause the Paying Agent to distribute) the greater of (i) that portion of the Earnout Amount actually earned through and including the closing date of the Acquisition Transaction, and (ii) the pro-rated portion of Thirteen Million Dollars ($13,000,000), based on the number of days that have elapsed from January 1, 2015 through and including the closing date of the Acquisition Transaction (the “Accelerated Earnout”). To assist the Stockholder Representative in its determination whether to elect to accelerate the Earnout, Parent shall make available to the Stockholder Representative and its Representatives same extent that Parent would have been required to perform it if no such information and detail relating to the Earnout Amount as is reasonably requested. The Company shall be given notice of the proposed Acquisition Transaction no less than five (5) Business Days following execution of definitive agreements with respect to the Acquisition Transaction, and Stockholder Representative shall notify the Parent of its election to accelerate the Earnout Amount pursuant to this Section 7.2(f) within ten (10) Business Days of receiving notice of such proposed Acquisition Transaction. Any such payment made pursuant to this Section 7.2(f) shall be made as soon as practicable, but in any event within five (5) Business Days following consummation of such Acquisition Transaction.succession had taken place

Earn-Out. (a) As soon as reasonably practical On or before the 60th day following the completion conclusion of Parent’s audit of its consolidated financial statements for the fiscal year ended December 31Earn-Out Period, 2015, which shall be prepared in accordance with GAAP and the applicable accounting requirements and the rules and regulations promulgated by the Securities and Exchange Commission, but no later than March 15, 2016, the Company Purchaser shall prepare and deliver to Selling Parties, Purchaser’s good faith determination of the Stockholder Representative a statement setting forth EBITDA of the 2015 Actual Revenue Business for the Earn-Out Period (the “Preliminary 2015 Actual Revenue Earn-Out Calculation Statement”)) setting forth in reasonable detail its determination of the EBITDA of the Business for the Earn-Out Period and the Earn Out Amount. The Preliminary 2015 Actual Revenue Statement In addition, during the Earn-Out Period, Purchaser shall be prepared prepare and deliver to Selling Parties quarterly statements of the EBITDA of the Business setting forth in accordance reasonable detail the current EBITDA of the Business. Purchaser shall maintain financial records with GAAPrespect to the Business, applied consistently with separate from those records of Purchaser’s other businesses.1 Notwithstanding anything to the past accounting practices and procedures contrary in this Agreement, Purchaser shall have no obligation to maximize, or to attempt to maximize, the EBITDA of Parentthe Business; provided, however, that Purchaser shall not take any action in bad faith for the purpose of minimizing the EBITDA of the Business during the Earn-Out Period. (b) Selling Parties shall have 30 days after receipt of the Earn-Out Calculation Statement (the “EBITDA Review Period”) to review the Earn-Out Calculation Statement. During the EBITDA Review Period, the Selling Parties and their accountants shall have the right to inspect Purchaser’s books and records in respect of the Acquired Assets and Business during normal business hours at Purchaser’s principal executive offices, upon reasonable prior notice and solely for purposes reasonably related to the determination of the EBITDA of the Business. If Selling Parties reasonably in good faith object to the Stockholder Representative disputes calculation of the Preliminary 2015 Actual Revenue EBITDA of the Business and/or the Earn-Out Amount, then prior to 5 Business Days after the expiration of the EBITDA Review Period, Selling Parties may object to Purchaser’s determination set forth in the Earn-Out Calculation Statement, then the Stockholder Representative shall deliver by delivering a written notice of objection (an “Earn-Out Objection”) to Parent a Dispute Notice describing with reasonable detail the basis for any such dispute within thirty (30) calendar days after receiving the Preliminary 2015 Actual Revenue StatementPurchaser. If Selling Parties fail to deliver an Earn-Out Objection to Purchaser prior to 5 Business Days after the Stockholder Representative does not deliver the Dispute Notice to Parent within expiration of such thirty (30) calendar day time periodEBITDA Review Period, then the determination of the 2015 Actual Revenue as EBITDA of the Business and the Earn-Out Amount set forth in the Earn-Out Calculation Statement will be final and binding on the Preliminary 2015 Actual Revenue Statement parties hereto. (c) If Selling Parties timely deliver an Earn-Out Objection, Purchaser and Selling Parties shall be deemed final and accepted by the Stockholder Representative. Parent and the Stockholder Representative will cooperate and work negotiate in good faith to resolve any such dispute themselvesagree upon the EBITDA of the Business and the Earn-Out Amount for the Earn-Out Period. If such dispute is not finally resolved Purchaser and Selling Parties are unable to reach agreement on one or more items related to the calculation of the EBITDA of the Business within thirty (30) calendar 30 days after Parent’s receipt an Earn-Out Objection has been given, the unresolved disputed items shall be promptly referred to an arbitrator selected in the manner set forth in Section 2.4 (the “Earn-Out Arbitrator”), and which shall be the exclusive means for resolution of the Dispute Notice, either Parent or the Stockholder Representative may thereafter cause the dispute such dispute. The Earn-Out Arbitrator shall be directed to be submitted render a written report as to the Arbitrating Accountant and unresolved disputed matters in question as promptly as practicable, but in no event later than 30 days after such submission to the Earn-Out Arbitrator. The Earn-Out Arbitrator shall instruct be instructed to limit its determination solely to the Arbitrating Accounting to review this Agreement and unresolved disputed items (as well as any other items upon which the disputed items or amounts may have an impact) in determining connection with calculation of the 2015 Actual RevenueEBITDA of the Business as reflected on the Earn-Out Calculation Statement. Within thirty (30) calendar days after submission Purchaser and Selling Parties shall each promptly furnish to the Arbitrating Accountant for resolutionEarn-Out Arbitrator such work papers, Parent schedules and other documents and information as the Stockholder Representative Earn-Out Arbitrator may reasonably request. The Earn-Out Arbitrator may submit written questions to Purchaser and Selling Parties, each of whom shall each indicate promptly respond in writing their position on each disputed matter and each to questions directed to such party’s determination . Each of Purchaser and Selling Parties shall be entitled to submit a written position statement concerning the amount of the 2015 Actual Revenuematters in question. The Arbitrating Accountant Earn-Out Arbitrator shall make a written determination on each disputed matter no later than sixty (60) calendar days after submission to resolve the Arbitrating Accountant for resolution and such determination will be conclusive and binding upon Parent and the Stockholder Representative with respect to that disputed matter. In conducting its review, the Arbitrating Accountant shall consider only items matters in dispute, and shall base its determination question based solely on the written submissions of Parent terms in this Agreement, answers to questions posed by the Earn-Out Arbitrator and the Stockholder Representative (i.e., no independent investigation) submissions made by Purchaser and Selling Parties to the definitions and methodologies prescribed hereinEarn-Out Arbitrator. The fees Earn-Out Arbitrator shall be jointly engaged by Purchaser and Selling Parties, and all fees, costs and expenses of the Arbitrating Accountant Earn-Out Arbitrator shall be paid by one-half by the Company Selling Parties and one-half by Purchaser. The determination by the Stockholder Representative. Upon final determination of the Earnout Amount in accordance with this Section 7.2(b), Parent shall distribute (or cause the Escrow Agent, with respect Earn-Out Arbitrator pursuant to the Escrowed Earnout Amountforegoing shall be final, or the Paying Agent, to distribute) the portion of the Earnout Amount otherwise due binding upon and payable to the Company Stockholders, Company Optionholders and RSU Holders within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). To the extent the Earnout Amount is less than the Escrowed Earnout Amount, each of Parent and the Stockholder Representative shall direct the Escrow Agent to distribute the Escrowed Earnout Amount, or portion thereof, that is in excess of the Earnout Amount to Parent within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). (c) Through December 31, 2015, the Parent and the Company, will not, and shall cause each of their Affiliates to not, without the prior consent of the Stockholder Representative, (i) materially decrease expenditures to support sales and marketing at the Company below the levels set forth in the 2015 Marketing Support Budget previously furnished non-appealable by the Company to Parent (the “Marketing Support”), (ii) voluntarily liquidate, dissolve or windparties. 1 The Borrower will be accounted for as if a stand-up the Company or its business, (iii) sell, assign, lease or otherwise transfer (directly or indirectly, in a single transaction or series of related transactions) all or substantially all of the Company or any material amount of assets (tangible or intangible) related to the Company, (iv) enter into or permit to exist any agreement, arrangement or understanding that would restrict or prevent payment of any Earnout Amount when due (other than the Senior Debt as the Senior Debt Documents may be amended or modified) or (iv) take any action for the purpose of reducing or otherwise adversely affecting the Earnout Amountalone company post-Closing. See Exhibit A attached hereto. (d) Through December 31, 2015If an Earn-Out Objection was not issued, the Parent and Earn-Out Amount, if any, shall be paid by Purchaser to Company in accordance with the Company shall, and shall cause each terms of their Affiliates to, (i) use commercially reasonable efforts to operate this Section 2.5 no later than 10 business days following the Company substantially in the ordinary course and generally consistent with past practices; and (ii) work with senior management expiration of the EBITDA Review Period. If an Earn-Out Objection is issued and it is subsequently determined under clause (c) of this Section 2.5 that the Earn-Out Amount has been earned, then the Earn-Out Amount shall be paid by Purchaser to Company to identify, in accordance with the terms of this Section 2.5 no later than 30 days following date upon which the determination of the EBITDA of the Business becomes final and where appropriate, pursue cross-selling opportunities, including selling binding upon the Company’s services to Parent or any of its Affiliatesparties as provided in this Section 2.5. (e) Except as set forth herein, neither Parent nor the Company shall have any obligations pursuant to this Section 7.2, implied or otherwise, The parties hereto understand and in furtherance of the foregoing the parties agree and acknowledge that neither Parent nor the Company, nor any of their Affiliates following the Closing will be required to (and none are expected to) make any investment, contribution, payment or capital infusions (in or to the Company or otherwise) to achieve any amount of the 2015 Actual Revenue. The Company and each Company Stockholder by their approval of the Merger agrees and acknowledges that neither Parent, the Company nor any of their Affiliates owes (and each holder of Company Common Stock, Company Stock Options, Restricted Stock Units and Company Preferred Stock waives) any express or implied fiduciary duty or duty of good faith or fair dealing to any of the Company Stockholders, Company Optionholders or RSU Holders with respect to or relating to any matter that affects the 2015 Actual Revenue or the Earnout Amount. The Company and each Company Stockholder, Company Optionholder or RSU Holder acknowledges that (i) upon the closing contingent rights to receive any Earn-Out Amount shall not be represented by any form of certificate or other instrument, are not transferable (provided, however, that the transactions contemplated proceeds therefrom may be assigned by this Agreement, Parent has the right to operate the Company and the Parent’s other businesses in any way that Parent deems appropriate in its sole discretion (subject to Section 7.2(c) and (d) aboveSelling Parties), except by operation of Laws relating to descent and distribution, divorce and community property, and do not constitute an equity or ownership interest in Purchaser, and (ii) Parent has no obligation interest is payable with respect to operate the Company in order to achieve any Earnout Amount or to maximize the amount of any Earnout Amount (subject to Section 7.2(c) and (d) above), (iii) the Earnout Amount is speculative and is subject to numerous factors outside the control of Parent and the Company, (iv) there is no assurance that any Company Stockholder, Company Optionholder or RSU Holder will receive any Earnout Amount and Parent has not promised nor projected any Earnout Earn-Out Amount, and (v) the parties solely intend the express provisions of this Agreement to govern their contractual relationship. (f) In the event The parties intend that prior Earn-Out Amount required to January 1, 2016, Parent consummates any transaction pursuant be paid to which all or substantially all of the business, properties or assets of Parent are transferred to another person not directly or indirectly controlled by Parent, whether by merger, purchase of assets, tender offer or otherwise (an “Acquisition Transaction”), then the Stockholder Representative shall have the option, in its sole discretion, and in lieu of, and in complete satisfaction of, any Earnout Amount that the Company Stockholders, Company Optionholders and RSU Holders may otherwise be entitled to in accordance with Section 7.2(a), to cause the Parent to distribute (or cause the Paying Agent to distribute) the greater of (i) that portion of the Earnout Amount actually earned through and including the closing date of the Acquisition Transaction, and (ii) the pro-rated portion of Thirteen Million Dollars ($13,000,000), based on the number of days that have elapsed from January 1, 2015 through and including the closing date of the Acquisition Transaction (the “Accelerated Earnout”). To assist the Stockholder Representative in its determination whether to elect to accelerate the Earnout, Parent shall make available to the Stockholder Representative and its Representatives such information and detail relating to the Earnout Amount as is reasonably requested. The Company shall be given notice of the proposed Acquisition Transaction no less than five (5) Business Days following execution of definitive agreements with respect to the Acquisition Transaction, and Stockholder Representative shall notify the Parent of its election to accelerate the Earnout Amount pursuant to this Section 7.2(f) within ten (10) Business Days of receiving notice of such proposed Acquisition Transaction. Any such payment made pursuant to this Section 7.2(f) 2.5 shall be made treated as soon deferred Purchase Price which is contingent as practicableto the amounts for purposes of Section 453 of the Code and subject to the applicable imputed interest rules of Sections 483 and 1274 of the Code, but in any event within five (5) Business Days following consummation of and such Acquisition Transactionamounts shall be reported consistent with the forgoing unless otherwise required by applicable Law.

Earn-Out. (a) As soon as reasonably practical following On each Earn Out Payment Date, Amherst Southwest shall pay to Allstar the completion of Parent’s audit of its consolidated financial statements Earn Out Payment, if any, for the fiscal year ended December 31immediately preceding Earn Out Calculation Period. Each Earn Out Payment shall be calculated as fifty percent (50%) of the SBC Modified Gross Profit for the appropriate Earn Out Period, 2015but Amherst Southwest shall have no obligation to make any Earn Out Payments to Allstar with respect to SBC Modified Gross Profit on SBC Net Sales in excess of Two Hundred Forty Million Dollars ($240,000,000) in the aggregate. (b) All Earn Out Payments shall be calculated in accordance with GAAP, but paid only for SBC Modified Gross Profit actually received by Amherst Southwest on a cash basis, and shall be made by Amherst Southwest by wire transfer of immediately available funds on or before the Earn Out Payment Date to such bank account as Allstar may specify from time to time in writing. Allstar's share of any SBC Modified Gross Profit that is accrued but not actually received by Amherst Southwest at the end of an Earn Out Calculation Period shall be included in the Earn Out Payment to Allstar for the Earn Out Calculation Period in which such payment was actually received by Amherst Southwest or, if such payment is received after the end of the last Earn Out Payment Date, within thirty (30) days after the date such payment was received by Amherst Southwest. (c) All Earn Out Payments shall be accompanied by a written report of Amherst Southwest detailing the calculation of such Earn Out Payment, which report shall be prepared in accordance with GAAP and the applicable accounting requirements shall include invoice numbers, and the rules and regulations promulgated by the Securities and Exchange Commission, but no later than March 15, 2016for each invoice, the Company cost of goods sold, sales commissions, freight in, freight out and subcontracted costs. All Earn Out Payments shall prepare and deliver to the Stockholder Representative also be accompanied by a statement setting forth the 2015 Actual Revenue written report of Amherst Southwest's independent auditor (the “Preliminary 2015 Actual Revenue Statement”). The Preliminary 2015 Actual Revenue Statement which shall be prepared a firm with national recognition) certifying that such auditors have reviewed Amherst Southwest's written report, compared the information contained in Amherst Southwest's report to a sampling of the original records of Amherst Southwest and vouched such sampling in accordance with GAAP, applied consistently with the past accounting practices and procedures of Parent. (b) If the Stockholder Representative disputes the Preliminary 2015 Actual Revenue Statement, then the Stockholder Representative shall deliver to Parent a Dispute Notice describing with reasonable detail the basis for any such dispute within thirty (30) calendar days after receiving the Preliminary 2015 Actual Revenue Statement. If the Stockholder Representative does not deliver the Dispute Notice to Parent within such thirty (30) calendar day time period, then the determination of the 2015 Actual Revenue as set forth on the Preliminary 2015 Actual Revenue Statement shall be deemed final and generally accepted by the Stockholder Representative. Parent and the Stockholder Representative will cooperate and work in good faith to resolve any such dispute themselves. If such dispute is not finally resolved within thirty (30) calendar days after Parent’s receipt of the Dispute Notice, either Parent or the Stockholder Representative may thereafter cause the dispute to be submitted to the Arbitrating Accountant and shall instruct the Arbitrating Accounting to review this Agreement and the disputed items or amounts in determining the 2015 Actual Revenue. Within thirty (30) calendar days after submission to the Arbitrating Accountant for resolution, Parent and the Stockholder Representative shall each indicate in writing their position on each disputed matter and each such party’s determination of the amount of the 2015 Actual Revenue. The Arbitrating Accountant shall make a written determination on each disputed matter no later than sixty (60) calendar days after submission to the Arbitrating Accountant for resolution and such determination will be conclusive and binding upon Parent and the Stockholder Representative with respect to that disputed matter. In conducting its review, the Arbitrating Accountant shall consider only items in disputeauditing standards, and shall base its determination solely on verified that the written submissions of Parent and the Stockholder Representative (i.e., no independent investigation) and the definitions and methodologies prescribed herein. The fees and expenses of the Arbitrating Accountant shall be paid by one-half by the Company and one-half by the Stockholder Representative. Upon final determination of the Earnout Amount in accordance with this Section 7.2(b), Parent shall distribute (or cause the Escrow Agent, with respect to the Escrowed Earnout Amount, or the Paying Agent, to distribute) the portion of the Earnout Amount otherwise due and payable to the Company Stockholders, Company Optionholders and RSU Holders within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). To the extent the Earnout Amount is less than the Escrowed Earnout Amount, each of Parent and the Stockholder Representative shall direct the Escrow Agent to distribute the Escrowed Earnout Amount, or portion thereof, that is in excess of the Earnout Amount to Parent within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). (c) Through December 31, 2015, the Parent and the Company, will not, and shall cause each of their Affiliates to not, without the prior consent of the Stockholder Representative, (i) materially decrease expenditures to support sales and marketing at the Company below the levels set forth calculations in the 2015 Marketing Support Budget previously furnished by the Company to Parent (the “Marketing Support”), (ii) voluntarily liquidate, dissolve or wind-up the Company or its business, (iii) sell, assign, lease or otherwise transfer (directly or indirectly, in a single transaction or series of related transactions) all or substantially all of the Company or any material amount of assets (tangible or intangible) related to the Company, (iv) enter into or permit to exist any agreement, arrangement or understanding that would restrict or prevent payment of any Earnout Amount when due (other than the Senior Debt as the Senior Debt Documents may be amended or modified) or (iv) take any action for the purpose of reducing or otherwise adversely affecting the Earnout Amountreport are accurate. (d) Through December 31In the event that Allstar disagrees with, 2015or has questions concerning, an Earn Out Payment, Allstar may, within 30 days after receipt of Amherst Southwest's written report, request a meeting with the Parent Chief Financial Officer of Amherst Southwest for the purpose of discussing such written report. Amherst Southwest and the Company shall, and Allstar shall cause each such meeting to occur within a reasonable period of their Affiliates totime not more than 30 days after the date of Allstar's request, (i) use at a mutually acceptable time and place. Amherst Southwest and Allstar shall cooperate in good faith and in a commercially reasonable efforts manner to operate resolve any disputes concerning the Company substantially in calculation of any Earn Out Payment. If such disputes cannot be mutually resolved within 30 days after the ordinary course and generally consistent with past practices; and (ii) work with senior management date of the Company meeting, either Party may submit the dispute to identify, and where appropriate, pursue cross-selling opportunities, including selling the Company’s services to Parent or any resolution in accordance with Section 11.13 of its Affiliatesthis Agreement. (e) Except as set forth hereinAmherst Southwest agrees that it and its Affiliates will use good faith, neither Parent commercially reasonable efforts to perform the SBC Agreement in accordance with its terms. Neither Amherst Southwest nor its Affiliates shall enter into any transaction or take any action with any Affiliate the Company shall have any obligations pursuant effect of which is to this Section 7.2, implied or otherwise, and in furtherance of decrease the foregoing the parties agree and acknowledge that neither Parent nor the Company, nor any of their Affiliates following the Closing will be required Earn Out Payments payable to (and none are expected to) make any investment, contribution, payment or capital infusions (in or to the Company or otherwise) to achieve any amount of the 2015 Actual Revenue. The Company and each Company Stockholder by their approval of the Merger agrees and acknowledges that neither Parent, the Company nor any of their Affiliates owes (and each holder of Company Common Stock, Company Stock Options, Restricted Stock Units and Company Preferred Stock waives) any express or implied fiduciary duty or duty of good faith or fair dealing to any of the Company Stockholders, Company Optionholders or RSU Holders with respect to or relating to any matter that affects the 2015 Actual Revenue or the Earnout Amount. The Company and each Company Stockholder, Company Optionholder or RSU Holder acknowledges that (i) upon the closing of the transactions contemplated by this Agreement, Parent has the right to operate the Company and the Parent’s other businesses in any way that Parent deems appropriate in its sole discretion (subject to Section 7.2(c) and (d) above), (ii) Parent has no obligation to operate the Company in order to achieve any Earnout Amount or to maximize the amount of any Earnout Amount (subject to Section 7.2(c) and (d) above), (iii) the Earnout Amount is speculative and is subject to numerous factors outside the control of Parent and the Company, (iv) there is no assurance that any Company Stockholder, Company Optionholder or RSU Holder will receive any Earnout Amount and Parent has not promised nor projected any Earnout Amount, and (v) the parties solely intend the express provisions of this Agreement to govern their contractual relationshipAllstar hereunder. (f) In The Earn Out Payments payable to Allstar hereunder are herein referred to collectively as the event that prior to January 1, 2016, Parent consummates any transaction pursuant to which all or substantially all of the business, properties or assets of Parent are transferred to another person not directly or indirectly controlled by Parent, whether by merger, purchase of assets, tender offer or otherwise (an “Acquisition Transaction”), then the Stockholder Representative shall have the option, in its sole discretion, and in lieu of, and in complete satisfaction of, any Earnout Amount that the Company Stockholders, Company Optionholders and RSU Holders may otherwise be entitled to in accordance with Section 7.2(a), to cause the Parent to distribute (or cause the Paying Agent to distribute) the greater of (i) that portion of the Earnout Amount actually earned through and including the closing date of the Acquisition Transaction, and (ii) the pro-rated portion of Thirteen Million Dollars ($13,000,000), based on the number of days that have elapsed from January 1, 2015 through and including the closing date of the Acquisition Transaction (the “Accelerated Earnout”). To assist the Stockholder Representative in its determination whether to elect to accelerate the Earnout, Parent shall make available to the Stockholder Representative and its Representatives such information and detail relating to the Earnout Amount as is reasonably requested. The Company shall be given notice of the proposed Acquisition Transaction no less than five (5) Business Days following execution of definitive agreements with respect to the Acquisition Transaction, and Stockholder Representative shall notify the Parent of its election to accelerate the Earnout Amount pursuant to this Section 7.2(f) within ten (10) Business Days of receiving notice of such proposed Acquisition Transaction. Any such payment made pursuant to this Section 7.2(f) shall be made as soon as practicable, but in any event within five (5) Business Days following consummation of such Acquisition Transaction"Earn Out."

Earn-Out. (a) As soon as reasonably practical following In addition to the completion of Parent’s audit of its consolidated financial statements for Base Purchase Price and the fiscal year ended December 31Note, 2015, which Seller shall be prepared in accordance with GAAP entitled, upon full repayment of the Note and to the applicable accounting requirements and the rules and regulations promulgated extent not prohibited by the Securities and Exchange Commission, but no later than March 15, 2016, the Company shall prepare and deliver terms of any credit facilities in favor of Buyer (to the Stockholder Representative a statement setting forth extent any such restrictions exist, all payments which would be payable under this section absent such restriction shall be deferred until such time as the 2015 Actual Revenue payment thereof is not prohibited by the terms of any such facilities), to additional earn-out consideration (the “Preliminary 2015 Actual Revenue StatementEarn-Out”). The Preliminary 2015 Actual Revenue Statement shall be prepared in accordance with GAAP, applied consistently with the past accounting practices and procedures of Parent. ) up to a maximum amount (b) If the Stockholder Representative disputes the Preliminary 2015 Actual Revenue Statement, then the Stockholder Representative shall deliver subject to Parent a Dispute Notice describing with reasonable detail the basis for any such dispute within thirty (30) calendar days after receiving the Preliminary 2015 Actual Revenue Statement. If the Stockholder Representative does not deliver the Dispute Notice to Parent within such thirty (30) calendar day time period, then the determination of the 2015 Actual Revenue adjustment as set forth on in this Agreement) of $9,000,000 (the Preliminary 2015 Actual Revenue Statement shall be deemed final and accepted by “Earn-Out Amount”) as follows: i) Until the Stockholder Representative. Parent and earlier of (x) such time as $7,000,000 (as adjusted pursuant to this Agreement) (“1st Tier Earn-Out”) is paid in full pursuant to this Section 7(c)(i), or (y) the Stockholder Representative will cooperate and work in good faith to resolve any such dispute themselves. If such dispute is not finally resolved within thirty (30) calendar days after Parent’s receipt last day of the Dispute Notice, either Parent or 5th full calendar year ending after the Stockholder Representative may thereafter cause the dispute to be submitted to the Arbitrating Accountant and shall instruct the Arbitrating Accounting to review this Agreement and the disputed items or amounts in determining the 2015 Actual Revenue. Within thirty (30) calendar days after submission to the Arbitrating Accountant for resolution, Parent and the Stockholder Representative shall each indicate in writing their position on each disputed matter and each such party’s determination of the amount of the 2015 Actual Revenue. The Arbitrating Accountant shall make a written determination on each disputed matter no later than sixty (60) calendar days after submission to the Arbitrating Accountant for resolution and such determination will be conclusive and binding upon Parent and the Stockholder Representative with respect to that disputed matter. In conducting its review, the Arbitrating Accountant shall consider only items in dispute, and shall base its determination solely on the written submissions of Parent and the Stockholder Representative (i.e., no independent investigation) and the definitions and methodologies prescribed herein. The fees and expenses of the Arbitrating Accountant shall be paid by one-half by the Company and one-half by the Stockholder Representative. Upon final determination of the Earnout Amount in accordance with this Section 7.2(b), Parent shall distribute (or cause the Escrow AgentClosing Date, with respect to each calendar year following the Escrowed Closing Date, Buyer shall pay to Seller an amount (“Earnout AmountPayment”), or equal to at least 35% of the Paying Agent, to distributeExcess Cash Flow of the Business during such calendar year. Excess Cash Flow of the Business shall be cumulative and shall be adjusted so that if in any prior calculation year(s) the portion Excess Cash Flow of the Earnout Amount otherwise due and payable Business was less than zero (“Yearly Shortfall”), such cumulative Yearly Shortfall is to be subtracted from the Company Stockholders, Company Optionholders and RSU Holders within ten (10) Business Days then cumulative Excess Cash Flow of the date upon which Business. If Excess Cash Flow of the Earnout Amount became final pursuant Business in the year is greater than zero, a payment shall be due to this Section 7.2(b)Seller with respect to such year, and paid to Seller in accordance with the terms herein. To If the extent cumulative Excess Cash Flow of the Earnout Amount Business following the Closing Date at any time is less than the Escrowed Earnout Amount, each of Parent and the Stockholder Representative shall direct the Escrow Agent equal to distribute the Escrowed Earnout Amount, or portion thereof, that is in excess of the Earnout Amount to Parent within ten $50,000,000 (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). (c) Through December 31, 2015, the Parent and the Company, will not, and shall cause each of their Affiliates to not, without the prior consent of the Stockholder Representative, (i) materially decrease expenditures to support sales and marketing at the Company below the levels set forth in the 2015 Marketing Support Budget previously furnished by the Company to Parent (the “Marketing Support”), (ii) voluntarily liquidate, dissolve or windBonus Earn-up the Company or its business, (iii) sell, assign, lease or otherwise transfer (directly or indirectly, in a single transaction or series of related transactions) all or substantially all of the Company or any material amount of assets (tangible or intangible) related to the Company, (iv) enter into or permit to exist any agreement, arrangement or understanding that would restrict or prevent payment of any Earnout Amount when due (other than the Senior Debt as the Senior Debt Documents may be amended or modified) or (iv) take any action for the purpose of reducing or otherwise adversely affecting the Earnout Amount. (d) Through December 31, 2015, the Parent and the Company shall, and shall cause each of their Affiliates to, (i) use commercially reasonable efforts to operate the Company substantially in the ordinary course and generally consistent with past practices; and (ii) work with senior management of the Company to identify, and where appropriate, pursue cross-selling opportunities, including selling the Company’s services to Parent or any of its Affiliates. (e) Except as set forth herein, neither Parent nor the Company shall have any obligations pursuant to this Section 7.2, implied or otherwise, and in furtherance of the foregoing the parties agree and acknowledge that neither Parent nor the Company, nor any of their Affiliates following the Closing will be required to (and none are expected to) make any investment, contribution, payment or capital infusions (in or to the Company or otherwise) to achieve any amount of the 2015 Actual Revenue. The Company and each Company Stockholder by their approval of the Merger agrees and acknowledges that neither Parent, the Company nor any of their Affiliates owes (and each holder of Company Common Stock, Company Stock Options, Restricted Stock Units and Company Preferred Stock waives) any express or implied fiduciary duty or duty of good faith or fair dealing to any of the Company Stockholders, Company Optionholders or RSU Holders with respect to or relating to any matter that affects the 2015 Actual Revenue or the Earnout Amount. The Company and each Company Stockholder, Company Optionholder or RSU Holder acknowledges that (i) upon the closing of the transactions contemplated by this Agreement, Parent has the right to operate the Company and the Parent’s other businesses in any way that Parent deems appropriate in its sole discretion (subject to Section 7.2(c) and (d) above), (ii) Parent has no obligation to operate the Company in order to achieve any Earnout Amount or to maximize the amount of any Earnout Amount (subject to Section 7.2(c) and (d) above), (iii) the Earnout Amount is speculative and is subject to numerous factors outside the control of Parent and the Company, (iv) there is no assurance that any Company Stockholder, Company Optionholder or RSU Holder will receive any Earnout Amount and Parent has not promised nor projected any Earnout Amount, and (v) the parties solely intend the express provisions of this Agreement to govern their contractual relationship. (f) In the event that prior to January 1, 2016, Parent consummates any transaction pursuant to which all or substantially all of the business, properties or assets of Parent are transferred to another person not directly or indirectly controlled by Parent, whether by merger, purchase of assets, tender offer or otherwise (an “Acquisition TransactionOut Test”), then Buyer shall pay to Seller the Stockholder Representative shall have difference between the option, in its sole discretion, and in lieu of, and in complete satisfaction of, any Earn-Out Amount less cumulative Earnout Amount that the Company Stockholders, Company Optionholders and RSU Holders may otherwise Payments. Each Earnout Payment will be entitled paid by Buyer to in accordance with Section 7.2(a), Seller by wire transfer of same day funds to cause the Parent to distribute (or cause the Paying Agent to distribute) the greater of (i) that portion of the an account designated by Seller within 5 days after such Earnout Amount actually earned through and including the closing date of the Acquisition Transaction, and (ii) the pro-rated portion of Thirteen Million Dollars ($13,000,000), based on the number of days that have elapsed from January 1, 2015 through and including the closing date of the Acquisition Transaction (the “Accelerated Earnout”). To assist the Stockholder Representative in its determination whether to elect to accelerate the Earnout, Parent shall make available to the Stockholder Representative and its Representatives such information and detail relating to the Earnout Amount as is reasonably requested. The Company shall be given notice of the proposed Acquisition Transaction no less than five (5) Business Days following execution of definitive agreements with respect to the Acquisition Transaction, and Stockholder Representative shall notify the Parent of its election to accelerate the Earnout Amount pursuant to this Section 7.2(f) within ten (10) Business Days of receiving notice of such proposed Acquisition Transaction. Any such payment made pursuant to this Section 7.2(f) shall be made as soon as practicable, but in any event within five (5) Business Days following consummation of such Acquisition TransactionPayment has been finally determined.

Earn-Out. The Escrow Property shall be held in the Escrow Account and, subject to Article VIII and this Article II, will only be released to the Sellers (aalong with the Accrued Dividends) As soon as reasonably practical following in the completion of Parent’s audit of its consolidated financial statements event that the Purchaser, the Company and their respective Subsidiaries meet certain minimum performance requirements in accordance with this Article II. Subject to Article VIII and this Article II, in the event that (i) the Adjusted Net Income for the fiscal calendar year ended December 31, 2015, which shall be prepared in accordance with GAAP and 2016 exceeds the applicable accounting requirements and the rules and regulations promulgated by the Securities and Exchange Commission, but no later than March 15, 2016, the Company shall prepare and deliver to the Stockholder Representative a statement setting forth the 2015 Actual Revenue (the “Preliminary 2015 Actual Revenue Statement”). The Preliminary 2015 Actual Revenue Statement shall be prepared in accordance with GAAP, applied consistently with the past accounting practices and procedures of Parent. (b) If the Stockholder Representative disputes the Preliminary 2015 Actual Revenue Statement, then the Stockholder Representative shall deliver to Parent a Dispute Notice describing with reasonable detail the basis for any such dispute within thirty (30) calendar days after receiving the Preliminary 2015 Actual Revenue Statement. If the Stockholder Representative does not deliver the Dispute Notice to Parent within such thirty (30) calendar day time period, then the determination of the 2015 Actual Revenue as set forth on the Preliminary 2015 Actual Revenue Statement shall be deemed final and accepted by the Stockholder Representative. Parent and the Stockholder Representative will cooperate and work in good faith to resolve any such dispute themselves. If such dispute is not finally resolved within thirty (30) calendar days after Parent’s receipt of the Dispute Notice, either Parent or the Stockholder Representative may thereafter cause the dispute to be submitted to the Arbitrating Accountant and shall instruct the Arbitrating Accounting to review this Agreement and the disputed items or amounts in determining the 2015 Actual Revenue. Within thirty (30) calendar days after submission to the Arbitrating Accountant for resolution, Parent and the Stockholder Representative shall each indicate in writing their position on each disputed matter and each such party’s determination of the amount of the 2015 Actual Revenue. The Arbitrating Accountant shall make a written determination on each disputed matter no later than sixty (60) calendar days after submission to the Arbitrating Accountant for resolution and such determination will be conclusive and binding upon Parent and the Stockholder Representative with respect to that disputed matter. In conducting its review, the Arbitrating Accountant shall consider only items in dispute, and shall base its determination solely on the written submissions of Parent and the Stockholder Representative (i.e., no independent investigation) and the definitions and methodologies prescribed herein. The fees and expenses of the Arbitrating Accountant shall be paid by one2016 Earn-half by the Company and one-half by the Stockholder Representative. Upon final determination of the Earnout Amount in accordance with this Section 7.2(b), Parent shall distribute (or cause the Escrow Agent, with respect to the Escrowed Earnout Amount, or the Paying Agent, to distribute) the portion of the Earnout Amount otherwise due and payable to the Company Stockholders, Company Optionholders and RSU Holders within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). To the extent the Earnout Amount is less than the Escrowed Earnout Amount, each of Parent and the Stockholder Representative shall direct the Escrow Agent to distribute the Escrowed Earnout Amount, or portion thereof, that is in excess of the Earnout Amount to Parent within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b). (c) Through December 31, 2015, the Parent and the Company, will not, and shall cause each of their Affiliates to not, without the prior consent of the Stockholder Representative, (i) materially decrease expenditures to support sales and marketing at the Company below the levels set forth in the 2015 Marketing Support Budget previously furnished by the Company to Parent (the “Marketing Support”)Out Target, (ii) voluntarily liquidate, dissolve or wind-up the Company or its business, (iii) sell, assign, lease or otherwise transfer (directly or indirectly, in a single transaction or series of related transactions) all or substantially all of the Company or any material amount of assets (tangible or intangible) related to the Company, (iv) enter into or permit to exist any agreement, arrangement or understanding that would restrict or prevent payment of any Earnout Amount when due (other than the Senior Debt as the Senior Debt Documents may be amended or modified) or (iv) take any action Adjusted Net Income for the purpose of reducing or otherwise adversely affecting the Earnout Amount. (d) Through calendar year ended December 31, 2015, 2017 exceeds the Parent and the Company shall, and shall cause each of their Affiliates to, (i) use commercially reasonable efforts to operate the Company substantially in the ordinary course and generally consistent with past practices; and (ii) work with senior management of the Company to identify, and where appropriate, pursue cross2017 Earn-selling opportunities, including selling the Company’s services to Parent Out Target or any of its Affiliates. (e) Except as set forth herein, neither Parent nor the Company shall have any obligations pursuant to this Section 7.2, implied or otherwise, and in furtherance of the foregoing the parties agree and acknowledge that neither Parent nor the Company, nor any of their Affiliates following the Closing will be required to (and none are expected to) make any investment, contribution, payment or capital infusions (in or to the Company or otherwise) to achieve any amount of the 2015 Actual Revenue. The Company and each Company Stockholder by their approval of the Merger agrees and acknowledges that neither Parent, the Company nor any of their Affiliates owes (and each holder of Company Common Stock, Company Stock Options, Restricted Stock Units and Company Preferred Stock waives) any express or implied fiduciary duty or duty of good faith or fair dealing to any of the Company Stockholders, Company Optionholders or RSU Holders with respect to or relating to any matter that affects the 2015 Actual Revenue or the Earnout Amount. The Company and each Company Stockholder, Company Optionholder or RSU Holder acknowledges that (i) upon the closing of the transactions contemplated by this Agreement, Parent has the right to operate the Company and the Parent’s other businesses in any way that Parent deems appropriate in its sole discretion (subject to Section 7.2(c) and (d) above), (ii) Parent has no obligation to operate the Company in order to achieve any Earnout Amount or to maximize the amount of any Earnout Amount (subject to Section 7.2(c) and (d) above), (iii) the Earnout Amount is speculative Adjusted Net Income for the calendar year ended December 31, 2018 exceeds the 2018 Earn-Out Target, the Sellers shall collectively be entitled to receive (each, an “Earn-Out Payment”) from the Escrow Account, in each case, one-third (1/3rd) of the Escrow Shares, and is from the Purchaser the Accrued Dividends on such one-third (1/3rd) portion of the Escrow Shares, subject to numerous factors outside maximum Earn-Out Payments in the control of Parent aggregate for all three calendar years 2016, 2017 and the Company2018 together (each such calendar year, (iv) there is no assurance that any Company Stockholder, Company Optionholder or RSU Holder will receive any Earnout Amount and Parent has not promised nor projected any Earnout Amountan “Earn-Out Year”, and (vsuch three-year calendar period, the “Earn-Out Period”) equal to the parties solely intend Escrow Property plus the express provisions of this Agreement to govern their contractual relationship. (f) Accrued Dividends. In the event that prior the above Adjusted Net Income targets are not met for any Earn-Out Year, the Sellers shall not be entitled to January 1receive any Earn-Out Payment for such Earn-Out Year and shall forfeit any right to such Escrow Property and Accrued Dividends with respect to such Earn-Out Year; provided, 2016however, Parent consummates any transaction pursuant that in the event that at the end of the Earn-Out Period the average Adjusted Net Income per Earn-Out Year for all three Earn-Out Years exceeds the Alternative Earn-Out Target (each of the 2016 Earn-Out Target, the 2017 Earn-Out Target, the 2018 Earn-Out Target and the Alternative Earn-Out Target, an “Earn-Out Target”), the Sellers shall collectively be entitled to which all or substantially receive all of the businessEscrow Property and Accrued Dividends that they previously did not receive (such payment the “Alternative Earn-Out Payment”, properties or assets with such Alternative Earn-Out Payment considered an additional Earn-Out Payment). For the avoidance of Parent are transferred doubt, failure to another person qualify for an Earn-Out Payment in any Earn-Out Year during the Earn-Out Period shall not directly or indirectly controlled by Parent, whether by merger, purchase of assets, tender offer or otherwise (prevent the Sellers from being able to collectively receive an “Acquisition Transaction”), then Earn-Out Payment in a subsequent Earn-Out Year during the Stockholder Representative shall have the option, in its sole discretion, and in lieu of, and in complete satisfaction of, Earn-Out Period. If for any Earnout Amount that the Company Stockholders, Company Optionholders and RSU Holders may otherwise be entitled to Earn-Out Year there is a final determination in accordance with Section 7.2(a)2.2 that the Sellers are entitled to receive an Earn-Out Payment for such Earn-Out Year or the Alternative Earn-Out Payment, to cause the Parent to distribute (or cause the Paying Agent to distribute) the greater of (i) that portion of the Earnout Amount actually earned through and including the closing date of the Acquisition Transaction, and (ii) the pro-rated portion of Thirteen Million Dollars ($13,000,000), based on the number of days that have elapsed from January 1, 2015 through and including the closing date of the Acquisition Transaction (the “Accelerated Earnout”). To assist the Stockholder Representative in its determination whether to elect to accelerate the Earnout, Parent shall make available to the Stockholder Representative and its Representatives such information and detail relating to the Earnout Amount as is reasonably requested. The Company shall be given notice of the proposed Acquisition Transaction no less than five (5) Business Days following execution of definitive agreements with respect to the Acquisition Transaction, and Stockholder Representative shall notify the Parent of its election to accelerate the Earnout Amount pursuant to this Section 7.2(f) within ten (10) Business Days of receiving notice of such proposed Acquisition Transaction. Any such payment made pursuant to this Section 7.2(f) shall be made as soon as practicable, but in any event then within five (5) Business Days following consummation after such final determination, the Purchaser, the DT Representative and the Seller Representative will provide joint written instructions to the Escrow Agent to release to the Sellers Escrow Property from the Escrow Account (and Purchaser shall pay the Accrued Dividends) in an aggregate amount (of Escrow Property and Accrued Dividends) equal to (i) such Earn-Out Payment less (ii) the aggregate amount of any indemnification claims by any Indemnified Parties under Article VIII that (A) are pending, (B) have been finally determined as due and owing but are unpaid from the Escrow Account in accordance with Article VIII or (C) have been paid from the Escrow Account in accordance with Article VIII but have not previously been used to reduce the amount of any prior Earn-Out Payment, with each Seller receiving its Pro Rata Share of such Acquisition Transactionnet Earn-Out Payment. At the end of the Earn-Out Period, if there is any Escrow Property and/or Accrued Dividends which the Sellers are not entitled to receive in accordance with this Article II, such Escrow Property and/or Accrued Dividends will be forfeited by the Sellers and distributed to Purchaser from the Escrow Account in the case of Escrow Property, or retained by the Purchaser, in the case of Accrued Dividends, and within five (5) Business Days after a final determination in accordance with Section 2.2 that at the end of the Earn-Out Period there is such Escrow Property to which the Sellers are not entitled to receive, the Purchaser, the DT Representative and the Seller Representative will provide joint written instructions to the Escrow Agent to release such Escrow Property to the Purchaser. The Purchaser will cancel any Escrow Shares distributed to the Purchaser from the Escrow Account promptly after its receipt thereof and cancel any Accrued Dividends payable in respect of such Escrow Shares. Each Seller acknowledges that such Seller’s right to receive the Escrow Shares, other Escrow Property and Accrued Dividends is contingent based on the performance of the Purchaser, the Company and their respective Subsidiaries for periods including those after the Closing as set forth in this ‎Article II, and that if the requirements for the payment of the Earn-Out Payments as set forth in this Article II are not met in accordance with the terms hereof, the Escrow Shares, the other Escrow Property and the Accrued Dividends will not be paid or delivered to the Sellers, and the Sellers shall have no right to receive such Escrow Shares, other Escrow Property or Accrued Dividends.

Earn-Out. (a) As soon as reasonably practical following Buyer shall pay annually to Seller an amount (“Annual Earnout Payment”) equal to (i) the completion excess, if any, of Parent’s audit of its consolidated financial statements (A) Eligible Cash Flow for the Company during each fiscal year ended during the five (5) year period beginning on January 1, 2005 and ending on December 31, 20152009 (each, which an “Earnout Period”) in excess of (B) $300,000 (“Baseline Cash Flow”) (such excess being the “Annual Cash Flow Excess”), multiplied by (ii) 20%. In no event shall an Annual Earnout Payment exceed $60,000 for any Earnout Period (“Earnout Cap”); provided, however, that if the Earnout Cap has not been reached in an Earnout Period, the shortfall between the Earnout Cap and the Annual Earnout Payment actually paid with respect to such Earnout Period shall be prepared carried over to future Earnout Periods and such amount may be payable in accordance with GAAP and excess of the applicable accounting requirements and the rules and regulations promulgated by the Securities and Exchange Commission, but no later than March 15, 2016, the Company shall prepare and deliver Earnout Cap in such Earnout Periods to the Stockholder Representative a statement setting forth extent otherwise earned under this Section 2.03 and to the 2015 Actual Revenue extent not previously used to pay an Annual Earnout Payment; provided further, however, that in no event shall the aggregate Annual Earnout Payments exceed $300,000. The Annual Cash Flow Excess shall be cumulative and shall be adjusted so that: (i) if in any prior Earnout Period(s) the Baseline Cash Flow exceeded the Eligible Cash Flow for that period (the “Preliminary 2015 Actual Revenue StatementAnnual Cash Flow Shortfall”), such cumulative Annual Cash Flow Shortfall is to be subtracted from the Annual Cash Flow Excess to determine whether a payment is due to Seller for such current period; and (ii) if, but for the Earnout Cap, the amount of Annual Cash Flow Excess in any prior Earnout Period(s) would have resulted in an Annual Earnout Payment exceeding the Earnout Cap (as adjusted pursuant to this Section 2.03), such unused portion of the Annual Cash Flow Excess (i.e., the amount of Annual Cash Flow Excess above the amount needed to reach the Earnout Cap for the relevant Earnout Period) shall be added to Eligible Cash Flow in subsequent Earnout Period(s), until such additional Annual Cash Flow Excess has been used in determining whether a payment is due to Seller for a subsequent Earnout Period. The Preliminary 2015 Actual Revenue Statement shall Annual Earnout Payment will be prepared in accordance with GAAP, applied consistently with paid to Seller within forty-five (45) days after the past accounting practices and procedures of ParentEligible Cash Flow has been determined for a particular Earnout Period. (b) By way of example: (i) If in Year One, the Stockholder Representative disputes Annual Cash Flow Excess equals $200,000, the Preliminary 2015 Actual Revenue StatementAnnual Earnout Payment would equal $40,000. In Year Two, then if the Stockholder Representative shall deliver to Parent a Dispute Notice describing with reasonable detail Annual Cash Flow Excess equals $500,000, the basis for any such dispute within thirty (30) calendar days after receiving Annual Earnout Payment would equal $80,000. The $20,000 shortfall between the Preliminary 2015 Actual Revenue Statement. If the Stockholder Representative does not deliver the Dispute Notice to Parent within such thirty (30) calendar day time period, then the determination of the 2015 Actual Revenue as set forth on the Preliminary 2015 Actual Revenue Statement shall be deemed final and accepted by the Stockholder Representative. Parent Earnout Cap and the Stockholder Representative will cooperate and work Annual Earnout Payment in good faith to resolve any such dispute themselves. If such dispute is not finally resolved within thirty (30) calendar days after Parent’s receipt of the Dispute Notice, either Parent or the Stockholder Representative may thereafter cause the dispute to Year One would be submitted added to the Arbitrating Accountant and shall instruct the Arbitrating Accounting to review this Agreement and the disputed items or amounts in determining the 2015 Actual Revenue. Within thirty (30) calendar days after submission to the Arbitrating Accountant Earnout Cap for resolution, Parent and the Stockholder Representative shall each indicate in writing their position on each disputed matter and each such party’s determination of the amount of the 2015 Actual RevenueYear Two. The Arbitrating Accountant shall make a written determination on each disputed matter no later than sixty (60) calendar days after submission to the Arbitrating Accountant for resolution and such determination will be conclusive and binding upon Parent and the Stockholder Representative with respect to that disputed matter. In conducting its review, the Arbitrating Accountant shall consider only items in dispute, and shall base its determination solely on the written submissions of Parent and the Stockholder Representative (i.e., no independent investigation) and the definitions and methodologies prescribed herein. The fees and expenses of the Arbitrating Accountant shall be paid by one-half by the Company and one-half by the Stockholder Representative. Upon final determination of the Earnout Amount in accordance with this Section 7.2(b), Parent shall distribute (or cause the Escrow Agent, with respect to the Escrowed Earnout Amount, or the Paying Agent, to distribute) the unused $100,000 portion of the Annual Cash Flow Excess in Year Two would be carried over to, and included in, Eligible Cash Flow for Year Three. (ii) If in Year One, there is an Annual Cash Flow Shortfall of $100,000, no Annual Earnout Amount otherwise Payment would be due and payable to payable. In Year Two, if the Company StockholdersAnnual Cash Flow Excess equals $300,000, Company Optionholders and RSU Holders within ten (10) Business Days of the date upon which Annual Earnout Payment would equal $40,000, as the $100,000 Annual Cash Flow Shortfall from Year One would be subtracted from the Annual Cash Flow Excess from Year Two. If in Year Two, the Annual Cash Flow Excess equals $700,000, the Annual Earnout Payment for Year Two would equal $120,000, because the $60,000 shortfall between the Earnout Amount became final pursuant to this Section 7.2(b). To the extent the Earnout Amount is less than the Escrowed Earnout Amount, each of Parent Cap and the Stockholder Representative shall direct Annual Earnout Payment paid in Year One would be carried over to, and would be payable in, Year Two, as earned. The $100,000 Annual Cash Flow Shortfall from Year One would be subtracted from the Escrow Agent Annual Cash Flow Excess from Year Two, however, leaving nothing to distribute the Escrowed Earnout Amount, or portion thereof, that is in excess of the Earnout Amount be carried over to Parent within ten (10) Business Days of the date upon which the Earnout Amount became final pursuant to this Section 7.2(b)Year Three. (c) Through December 31For purposes of this Agreement, 2015, the Parent and the Company, will not, and shall cause each of their Affiliates to not, without the prior consent of the Stockholder Representative, (i) materially decrease expenditures to support sales and marketing at the Company below the levels set forth in the 2015 Marketing Support Budget previously furnished by the Company to Parent (the “Marketing Support”), (ii) voluntarily liquidate, dissolve or wind-up the Company or its business, (iii) sell, assign, lease or otherwise transfer (directly or indirectly, in a single transaction or series of related transactions) all or substantially all Eligible Cash Flow” of the Company or any material amount of assets (tangible or intangible) related to the Company, (iv) enter into or permit to exist any agreement, arrangement or understanding that would restrict or prevent payment of for any Earnout Amount when due (other than the Senior Debt as the Senior Debt Documents may be amended or modified) or (iv) take any action for the purpose of reducing or otherwise adversely affecting the Earnout Amount. (d) Through December 31, 2015, the Parent and the Company shall, and Period shall cause each of their Affiliates to, (i) use commercially reasonable efforts to operate the Company substantially in the ordinary course and generally consistent with past practices; and (ii) work with senior management of the Company to identify, and where appropriate, pursue cross-selling opportunities, including selling mean the Company’s services to Parent or any of its Affiliates. (e) Except cash flows as set forth herein, neither Parent nor the Company shall have any obligations pursuant to this Section 7.2, implied or otherwise, and in furtherance of the foregoing the parties agree and acknowledge that neither Parent nor the Company, nor any of their Affiliates following the Closing will be required to (and none are expected to) make any investment, contribution, payment or capital infusions (in or to the Company or otherwise) to achieve any amount of the 2015 Actual Revenuedetermined by Buyer. The Company and each Company Stockholder by their approval of the Merger agrees and acknowledges that neither Parent, the Company nor any of their Affiliates owes (and each holder of Company Common Stock, Company Stock Options, Restricted Stock Units and Company Preferred Stock waives) any express or implied fiduciary duty or duty of good faith or fair dealing to any of the Company Stockholders, Company Optionholders or RSU Holders with respect to or relating to any matter that affects the 2015 Actual Revenue or the Earnout Amount. The Company and each Company Stockholder, Company Optionholder or RSU Holder acknowledges that (i) upon the closing of the transactions contemplated by this Agreement, Parent has the right to operate the Company and the Parent’s other businesses in any way that Parent deems appropriate in its sole discretion (subject to Section 7.2(c) and (d) above), (ii) Parent has no obligation to operate the Company in order to achieve any Earnout Amount or to maximize the amount of any Earnout Amount (subject to Section 7.2(c) and (d) above), (iii) the Earnout Amount is speculative and is subject to numerous factors outside the control of Parent and the Company, (iv) there is no assurance that any Company Stockholder, Company Optionholder or RSU Holder will receive any Earnout Amount and Parent has not promised nor projected any Earnout Amount, and (v) the parties solely intend the express provisions of this Agreement to govern their contractual relationship. (f) In the event that prior to January 1, 2016, Parent consummates any transaction pursuant to which all or substantially all of the business, properties or assets of Parent are transferred to another person not directly or indirectly controlled by Parent, whether by merger, purchase of assets, tender offer or otherwise (an “Acquisition Transaction”), then the Stockholder Representative shall have the option, in its sole discretion, and in lieu of, and in complete satisfaction of, any Earnout Amount that the Company Stockholders, Company Optionholders and RSU Holders may otherwise be entitled to in accordance with Section 7.2(a), to cause the Parent to distribute (or cause the Paying Agent to distribute) the greater of (i) that portion of the Earnout Amount actually earned through and including the closing date of the Acquisition Transaction, and (ii) the pro-rated portion of Thirteen Million Dollars ($13,000,000), based on the number of days that have elapsed from January 1, 2015 through and including the closing date of the Acquisition Transaction (the “Accelerated Earnout”). To assist the Stockholder Representative in its determination whether to elect to accelerate the Earnout, Parent shall make available to the Stockholder Representative and its Representatives determining such information and detail relating to the Earnout Amount as is reasonably requested. The Company shall be given notice of the proposed Acquisition Transaction no less than five (5) Business Days following execution of definitive agreements with respect to the Acquisition Transaction, and Stockholder Representative shall notify the Parent of its election to accelerate the Earnout Amount pursuant to this Section 7.2(f) within ten (10) Business Days of receiving notice of such proposed Acquisition Transaction. Any such payment made pursuant to this Section 7.2(f) shall be made as soon as practicable, but in any event within five (5) Business Days following consummation of such Acquisition Transaction.cash flows: