Common use of Earnout Payment Clause in Contracts

Earnout Payment. Promptly following the determination of the amount of the Earnout Payment, if any, in accordance with this Section 1.7, and in any event within thirty (30) days after such determination, Buyer shall pay to Parent the Earnout Payment in cash (or wire transfer of immediately available funds) to an account designated in writing by Parent. In the event payment of the Earnout Payment shall be prohibited by the terms of the Debt Financing or any Alternative Financing (as any of them may be amended, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer shall pay the maximum amount of the Earnout Payment that may be paid by Buyer pursuant to the Loan Agreements, and Buyer shall not be obligated to pay any remainder amount subject to the following: (i) any amount of the Earnout Payment not paid shall accrue interest for the period of any deferral at an annual rate equal to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility), (ii) any amount of the Earnout Payment not paid and any interest thereon shall be paid as soon as allowable under the terms of the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments in respect of management fees or similar fees until the full amount of the Earnout Payment and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunder, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan Agreements.

Earnout Payment. Promptly (a) Subject to Section 1.9(f), as soon as practicable, but in no event later than 120 days following the determination end of each Earnout Payment Period (or in the case of the amount final Earnout Payment referred to in Section 1.9(e)(ii)(C), 120 days following the November 30 of the December 1 to November 30 year that includes such seven-month final Earnout Payment Period), Buyer shall deliver to Seller, a written computation statement prepared by Buyer setting forth, in reasonable detail, (i) the EBIT, and (ii) the Earnout Payment, if any, for such Earnout Payment Period (the "Earnout Payment Statement"). (b) After receipt of the Earnout Payment Statement, Seller shall have 30 days to review it. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of Buyer and Buyer's accountants to the extent required to complete their review of the Earnout Payment Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Seller delivers written notice to Buyer on or prior to the 30th day after receipt of the Earnout Payment Statement of its disagreement as to any item included on or omitted from the Earnout Payment Statement (an "Earnout Payment Statement Objection"), Seller shall be deemed to have accepted and agreed to the Earnout Payment Statement. If Seller so notifies Buyer of an Earnout Payment Statement Objection, Seller and Buyer shall, within 30 days following the date of such notice (the "Resolution Period"), attempt to resolve their differences. Any resolution by them as to any disputed amount shall be final, binding, conclusive and nonappealable. The term "Final Earnout Payment Statement" shall mean the definitive Earnout Payment Statement, including the calculation of the Earnout Payment and EBIT agreed to by Seller and Buyer in accordance with this Section 1.7, and in any event within thirty (30) days after such determination, Buyer shall pay to Parent the Earnout Payment in cash (or wire transfer of immediately available funds) to an account designated in writing by Parent. In the event payment of the Earnout Payment shall be prohibited by the terms of the Debt Financing or any Alternative Financing (as any of them may be amended, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”1.9(b), Buyer shall pay or in the maximum amount absence of such agreement, the definitive Earnout Payment that may be paid by Buyer pursuant to the Loan AgreementsStatement, and Buyer shall not be obligated to pay any remainder amount subject to the following: (i) any amount of the Earnout Payment not paid shall accrue interest for the period of any deferral at an annual rate equal to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility), (ii) any amount of the Earnout Payment not paid and any interest thereon shall be paid as soon as allowable under the terms of the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments in respect of management fees or similar fees until the full amount of including the Earnout Payment and any accrued EBIT resulting from the determination made by the Neutral Auditor in accordance with Section 1.9(c) hereof (in addition to those items to which Seller and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunder, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan Agreementshave theretofore agreed).

Earnout Payment. (a) Promptly following the determination close of business on the amount Business Day prior to the Payment Date, SII will deliver to CGAL a statement of the Earnout PaymentAmount including a certificate from the transfer agent of the Trust as to the Trust Unit Amount or similar certification. (b) SII or its successor or assign shall, if anyon the Payment Date, in accordance with this Section 1.7, and in any event within thirty (30) days after such determination, Buyer shall pay to Parent the Earnout Payment in cash (or Amount to CGAL by wire transfer of immediately available fundsfunds as specified in accordance with Section 2.2(c) to in each case less any amounts withheld in accordance with Section 2.2(d) or set off in accordance with Section 5.1. For the avoidance of doubt, following any transaction that results in SII or an account designated in writing by Parent. In affiliate thereof no longer being the event manager of the Trust on the Payment Date, SII shall remain jointly and severally liable with its successor or assign for the payment of the Earnout Amount on the Payment Date. (c) Not less than three (3) Business Days prior to the Payment Date, CGAL shall be prohibited by provide detailed wire transfer instructions to SII with respect to the terms of the Debt Financing or any Alternative Financing (as any of them may be amended, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer shall pay the maximum amount payment of the Earnout Payment that may be paid by Buyer pursuant Amount to CGAL as contemplated in Section 2.2(a). If such instructions are provided to SII less than three (3) Business Days prior to the Loan AgreementsPayment Date, and Buyer shall not be obligated SII will use its commercially reasonable efforts to pay any remainder amount subject to make the following: (i) any amount payment of the Earnout Amount to CGAL on, or as soon as practicable following, the Payment not paid Date. (d) SII shall accrue interest for the period of be entitled to deduct and withhold from any deferral at an annual rate equal to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility), (ii) any amount payment of the Earnout Payment not paid Amount such amounts as SII is required or reasonably believes to be required to deduct and withhold from such amount under any interest thereon shall be paid as soon as allowable under the terms provision of the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments Law in respect of management fees Taxes, provided however that SII shall notify CGAL of its intent to withhold ten Business Days prior to making such withholding and shall permit CGAL to reduce the amount so withheld, if possible, including through the provision of tax forms, information, reports or similar fees until certificates. Any such amounts will be deducted, withheld and remitted from the full amount Earnout Amount payable pursuant to Section 2.2(b) and shall be treated for all purposes under this Agreement as having been paid to CGAL in respect of which such deduction, withholding and remittance was made; provided that such deducted and withheld amounts are actually remitted to the appropriate Governmental Entity. Without limiting the foregoing, the Parties presently expect that there will not be withholding from any payment of the Earnout Payment and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunder, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan AgreementsAmount.

Earnout Payment. Promptly following In connection with the delivery of the Earnout Payment Calculation, Buyer shall pay to each Company Holder such holder’s Earnout Pro-Rata Portion of the Earnout Payment based on the Earnout Payment Calculation. Within 15 calendar days after the determination of the amount of the Earnout Payment, if any, Payment in accordance with this Section 1.7, and in 2.7(g) (including resolution of any event within thirty (30) days after such determinationdispute), Buyer shall pay to Parent each Company Holder such holder’s Earnout Pro-Rata Portion of any additional payment due to Company Holders in an amount equal to the amount by which the final Earnout Payment exceeds the Earnout Payment paid in cash connection with the Earnout Payment Calculation. Any payment hereunder shall be paid in the form of (or wire transfer of i) immediately available funds, (ii) whole shares of Parent Common Stock or (iii) any combination thereof, with such payments being made to an the accounts of or, in the case of shares of Parent Common Stock, issued to the account of each Company Holder as designated to Buyer in writing by Parentthe Stockholder Representative; provided, however, (x) no less than 5% of all Earnout Payments shall be paid in cash and (y) Buyer may not pay any shares of Parent Common Stock to a Company Holder if (1) such shares of Parent Common Stock are not, if and when issued in connection with the transactions contemplated by this Agreement, duly authorized, fully paid, nonassessable and freely tradable under all federal and state securities laws, including the Securities Act, and otherwise transferable without restriction, (2) Parent is not listed for trading on the Exchange at the time of payment or is subject to any restriction, supervision, halt of trading or similar impediment to trading from the Exchange or any Governmental or Regulatory Authority, (3) the average daily volume of trading of Parent Common Stock for the 30 Trading Day period ending on the penultimate Trading Day prior to the date on which Buyer is required to make payment hereunder is not more than 25% less than the volume of trading for the 30 Trading Day period ending on the last Trading Day prior to the Effective Date of this Agreement, (4) the weighted average of the selling prices on the Nasdaq National Market or the New York Stock Exchange (the “Exchange” ) as reported in The Wall Street Journal, (or if not reported therein, any other authoritative source) of one share of Parent Common stock during the 30 Trading Day period ending on the penultimate Trading Day prior to the date on which Buyer is required to make payment hereunder is less than the sum of $2.00 and the minimum bid price for continued listing on the Exchange or (5) if compliance with Rule 506 of Regulation D of the Securities Act of 1933, as amended is required at the time of the offer or sale of Parent Common Stock and such Company Holder is not an accredited investor under such rule. In The value of shares of Parent Common Stock, if any, issued in connection with the event payment of the any Earnout Payment shall be prohibited by the terms of the Debt Financing or any Alternative Financing (as any of them may be amended, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer shall pay the maximum amount of the Earnout Payment that may be paid by Buyer pursuant to the Loan Agreements, and Buyer shall not be obligated to pay any remainder amount subject to the following: (i) any amount of the Earnout Payment not paid shall accrue interest for the period of any deferral at an annual rate equal to the interest rate applicable weighted average of the selling prices on the Exchange as reported in The Wall Street Journal, (or if not reported therein, any other authoritative source) of one share of Parent Common stock during the 30 Trading Day period ending on the penultimate Trading Day prior to the Senior Debt Financing (or date on which Buyer is required to make payment hereunder. No fractional shares of Parent Common Stock shall be issued in connection with any replacement or refinanced facility), (ii) any amount of the Earnout Payment not paid and any interest thereon made in accordance with the provisions of this Section 2.7(g). Instead, the number of shares of Parent Common Stock to which a Company Holder is entitled to receive in accordance with the provisions of this Section 2.7(g) shall be paid as soon as allowable under rounded to the terms of nearest whole share (with 0.5 shown rounded up to the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments in respect of management fees or similar fees until the full amount of the Earnout Payment and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunder, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan Agreementsnearest whole share).

Earnout Payment. Promptly following In connection with the delivery of the Earnout Payment Calculation, Buyer shall pay to each Company Holder such holder’s Earnout Pro-Rata Portion of the Earnout Payment based on the Earnout Payment Calculation. Within 15 calendar days after the determination of the amount of the Earnout Payment, if any, Payment in accordance with this Section 1.7, and in 2.7(g) (including resolution of any event within thirty (30) days after such determinationdispute), Buyer shall pay to Parent each Company Holder such holder’s Earnout Pro-Rata Portion of any additional payment due to Company Holders in an amount equal to the amount by which the final Earnout Payment exceeds the Earnout Payment paid in cash connection with the Earnout Payment Calculation. Any payment hereunder shall be paid in the form of (or wire transfer of i) immediately available funds, (ii) whole shares of Parent Common Stock or (iii) any combination thereof, with such payments being made to an the accounts of or, in the case of shares of Parent Common Stock, issued to the account of each Company Holder as designated to Buyer in writing by Parentthe Stockholder Representative; provided, however, (x) no less than [***] of all Earnout Payments shall be paid in cash and (y) Buyer may not pay any shares of Parent Common Stock to a Company Holder if (1) such shares of Parent Common Stock are not, if and when issued in connection with the transactions contemplated by this Agreement, duly authorized, fully paid, nonassessable and freely tradable under all federal and state securities laws, including the Securities Act, and otherwise transferable without restriction, (2) Parent is not listed for trading on the Exchange at the time of payment or is subject to any restriction, supervision, halt of trading or similar impediment to trading from the Exchange or any Governmental or Regulatory Authority, (3) the average daily volume of trading of Parent Common Stock for the 30 Trading Day period ending on the penultimate Trading Day prior to the date on which Buyer is required to make payment hereunder is not more than [***] than the volume of trading for the 30 Trading Day period ending on the last Trading Day prior to the Effective Date of this Agreement, (4) the weighted average of the selling prices on the Nasdaq National Market or the New York Stock Exchange (the “Exchange”) as reported in The Wall Street Journal, (or if not reported therein, any other authoritative source) of one share of Parent Common stock during the 30 Trading Day period ending on the penultimate Trading Day prior to the date on which Buyer is required to make payment hereunder is less than the sum of [***] and [***] or (5) if compliance with Rule 506 of Regulation D of the Securities Act of 1933, as amended is required at the time of the offer or sale of Parent Common Stock and such Company Holder is not an accredited investor under such rule. In The value of shares of Parent Common Stock, if any, issued in connection with the event payment of the any Earnout Payment shall be prohibited by the terms of the Debt Financing or any Alternative Financing (as any of them may be amended, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer shall pay the maximum amount of the Earnout Payment that may be paid by Buyer pursuant to the Loan Agreements, and Buyer shall not be obligated to pay any remainder amount subject to the following: (i) any amount of the Earnout Payment not paid shall accrue interest for the period of any deferral at an annual rate equal to the interest rate applicable weighted average of the selling prices on the Exchange as reported in The Wall Street Journal, (or if not reported therein, any other authoritative source) of one share of Parent Common stock during the 30 Trading Day period ending on the penultimate Trading Day prior to the Senior Debt Financing (or date on which Buyer is required to make payment hereunder. No fractional shares of Parent Common Stock shall be issued in connection with any replacement or refinanced facility), (ii) any amount of the Earnout Payment not paid and any interest thereon made in accordance with the provisions of this Section 2.7(g). Instead, the number of shares of Parent Common Stock to which a Company Holder is entitled to receive in accordance with the provisions of this Section 2.7(g) shall be paid as soon as allowable under rounded to the terms of nearest whole share (with 0.5 shown rounded up to the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments in respect of management fees or similar fees until the full amount of the Earnout Payment and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunder, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan Agreementsnearest whole share).

Earnout Payment. Promptly (a) As soon as practicable, but in no event later than 90 days following the determination end of each Earnout Payment Period, Buyer shall deliver to Sellers, a written computation statement prepared by Buyer setting forth in reasonable detail the amount calculation of the Earnout Payment, if any, in accordance with this Section 1.7, and in any event within thirty (30) days after for such determination, Buyer shall pay to Parent the Earnout Payment in cash Period (or wire transfer of immediately available fundsthe "Earnout Payment Statement"). (b) to an account designated in writing by Parent. In the event payment After receipt of the Earnout Payment Statement, Sellers shall be prohibited by the terms have 30 days to review it. Sellers and their representatives shall have reasonable access during normal business hours to all relevant books and records and employees of the Debt Financing or any Alternative Financing (as any of them may be amended, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer shall pay the maximum amount in connection with Sellers review of the Earnout Payment that may be paid by Statement. Unless Sellers deliver written notice to Buyer pursuant on or prior to the Loan Agreements, and Buyer shall not be obligated to pay any remainder amount subject to the following: (i) any amount 30th day after receipt of the Earnout Payment not paid shall accrue interest for the period Statement of any deferral at an annual rate equal its disagreement as to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility), (ii) any amount of included in or omitted from the Earnout Payment Statement specifying in reasonable detail the basis for its disagreement, Sellers shall be deemed to have accepted and agreed to the Earnout Payment Statement. If Sellers so notify Buyer of such an objection to an Earnout Payment Statement, Sellers and Buyer shall, within 30 days following the date of such notice (the "Earnout Resolution Period"), attempt to resolve their differences. Any resolution by them as to any disputed amount shall be final, binding, conclusive and nonappealable. Any amounts set forth in the Earnout Payment Statement which are not paid and any interest thereon in dispute ("Undisputed Amounts") shall be paid as soon as allowable under in immediately available funds by wire transfer to the terms account(s) designated by Sellers within five (5) business days after the date on which Sellers notify Buyer that such amounts are not in dispute. (c) If at the conclusion of the Loan Agreementsan Earnout Resolution Period there are amounts still remaining in dispute, (iii) then all amounts remaining in dispute shall be submitted to a firm of nationally recognized independent public accountants reasonably acceptable to Buyer and its subsidiaries may not make any payments in respect Sellers (the "Neutral Auditor"). If the Buyer and the Sellers are unable to agree on the choice of management fees or similar fees until an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Buyer and Sellers agree to execute, if requested by the full amount of the Earnout Payment Neutral Auditor, a reasonable engagement letter. The Neutral Auditor shall act as an arbitrator to determine, based solely on presentations by Buyer and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunderSellers, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if not by independent review, only those amounts still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan Agreements.in dispute. The Neutral Auditor's determination shall

Earnout Payment. Promptly following (a) As additional, partial consideration for the determination Merger, and subject to the provisions set forth in this Section 2.15, Parent shall issue to the holders of Outstanding Common Shares an additional earnout amount (the amount of the Earnout Payment“Earnout”), if any, of up to an aggregate of the Earnout Shares based upon the Net Revenue (as hereinafter defined) of the Surviving Corporation for the period set forth in this Section 2.15, subject to the provisions of this section below. If Net Revenue totals $[***] (the “Earnout Threshold”) or more for the period beginning on January 1, 2020 and ending June 30, 2020 (the “Earnout Period”), then, subject to reduction under Section 2.15(d) and subject to the last two sentences of this Section 2.15(a), Parent will issue, and Parent will cause the Exchange Agent to subscribe and deliver, to the holders of Outstanding Common Shares on the date that is fifteen (15) Business Days after it is finally determined pursuant to this Section 2.15 whether the Earnout has been achieved (the “Earnout Release Date”) and the Earnout Shares become issuable, each such holder’s Earnout Pro Rata Share of the Earnout Shares (such additional amount, before reduction under Section 2.15(d), the “Earnout Amount”). If issuable pursuant to this Section 2.15, the Earnout Shares shall be paid up by set-off of the Earnout claim by the holders of Outstanding Common Shares against Parent. If Net Revenue is less than the Earnout Threshold for the Earnout Period, then Parent will not issue any Earnout Shares to any holder of Outstanding Common Shares at any time pursuant to this Agreement. Notwithstanding the foregoing or anything else in this Section 2.15 to the contrary, if the Earnout Shares become issuable by Parent to the holders of Outstanding Common Shares pursuant to this Section 2.15 and such Earnout Shares become issuable prior to the Escrow Release Date, then [***] of the Earnout Shares shall be held back by Parent as security for the indemnification obligations of the Seller Indemnitors pursuant to Article IX (the “Holdback Shares”) and shall only be issued (if ever) by Parent to the holders of Outstanding Common Shares in accordance with the terms of Article IX. Notwithstanding the foregoing, if the Earnout is achieved pursuant to this Section 2.15 and (i) Parent’s shareholders fail to approve, as applicable, by the Earnout Release Date a shares proposal amending Parent’s articles of incorporation to permit the issuance of a sufficient number of shares of Parent Common Stock to cover the issuance of all of the Earnout Shares (including Holdback Shares) issuable or deliverable to holders of Outstanding Common Shares pursuant to this Section 2.15, (ii) as of the Earnout Release Date there are an insufficient number of authorized but unissued shares of Parent Common Stock (excluding treasury shares) under article 27 of Parent’s articles of incorporation to permit the issuance of all of the Earnout Shares (including the Holdback Shares) or (iii) Parent is prevented from registering any otherwise issuable Earnout Shares with the Swiss Commercial Registry of the Canton of Vaud for a period of more than twenty (20) Business Days past the otherwise applicable Earnout Release Date (provided, that Parent shall in any event use commercially reasonable efforts to remove any such impediments as promptly as reasonably practicable during such period), then, in each case, Parent, Parent or a designee of Parent shall (x) in the case of clauses (i) and (ii), on the Earnout Release Date or (y) in the case of clause (iii), within two (2) Business Days of the expiry of such twenty (20) Business Day period, in each case of clauses (x) and (y), pay (or cause to be paid) to (A) each such holder of Outstanding Common Shares, based on each holder’s Earnout Pro Rata Share thereof, an amount of cash equal to (1)(I) the number of Earnout Shares that would otherwise be issued or delivered to such holder pursuant to this Section 2.15 less (II) the Holdback Shares multiplied by (2) the Parent Market Price (the “Cash Earnout Payment”) and (B) the Escrow Agent an amount of cash equal to (1) the Holdback Shares multiplied by (2) the Parent Market Price, which amount contemplated by this clause (B) shall constitute a segregated portion of the Escrow Amount and be treated in the same manner as the Holdback Shares hereunder, mutatis mutandis. (b) The holders of Outstanding Common Shares acknowledge and agree that Parent, as the owner of the Surviving Corporation and the business of the Surviving Corporation after the Closing, has the power to direct the management, strategy and business decisions of the Surviving Corporation and the business of the Surviving Corporation after the Closing. Notwithstanding the foregoing, Parent agrees that Parent and its Subsidiaries will make decisions relating to the management and strategy of the Surviving Corporation and the business of the Surviving Corporation in good faith and not with the sole or primary purpose of reducing or avoiding the issuance of the Earnout Shares. The holders of Outstanding Common Shares agree that they will have no claim or other rights (other than the dispute rights of the Representative set forth in Section 2.15(c)) related to decisions made or actions taken by Parent and its Affiliates after the Closing made in accordance with this Section 1.72.15(b), even if such decisions or actions result in a reduction or elimination of the Earnout Shares. (c) Parent shall prepare, or cause to be prepared, and delivered to the Representative a written statement setting forth the computation of Net Revenue for the Earnout Period (the “Earnout Statement”), on or before the later of (i) the date that is forty-five (45) days after the end of the Earnout Period and (ii) five (5) Business Days after the date following the end of the Earnout Period on which Parent files a quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 on Form 10-Q with the Securities and Exchange Commission for the first quarter of its fiscal year. The Net Revenue set forth in the Earnout Statement shall become final and binding upon the Parties thirty (30) days following receipt by the Representative unless the Representative gives written notice of disagreement to Parent prior to the end of such thirty (30)-day period. Any such notice of disagreement must contain a statement of the basis for the Representative’s disagreement. With respect to any event disputed Earnout, Parent and the Representative each agree to attempt in good faith to reach an agreement with respect to the disputed amounts. If Parent and the Representative shall have failed to resolve such disputed amounts within thirty (30) days after receipt of the notice of disagreement (or such determinationlonger period as the Parties mutually agree to in writing), Buyer shall pay then such dispute may at any time thereafter be referred to the Accounting Firm by either Parent or the Representative for resolution in a manner substantially similar to the procedures set forth in Section 2.11(c), (d) and (f). (d) Notwithstanding anything in this Agreement to the contrary, Parent, in its sole discretion, is entitled to offset on a dollar-for-dollar basis (based on the Parent Market Price) from any Earnout Shares otherwise issuable by Parent pursuant to this Section 2.15 to a holder of Outstanding Common Shares (i) amounts that are owed to Parent (or any applicable Affiliate of Parent) by the holders of Outstanding Common Shares pursuant to Section 2.11 and (ii) amounts that are or reasonably may be owed to any Parent Indemnitee by such holder in its capacity as a Seller Indemnitor under Article IX pursuant to any pending Claim Notice, in each case of clauses (i) and (ii), subject to the limitations and procedures set forth in Section 2.11 and Article IX, respectively. Any Earnout Shares that are offset pursuant to this Section 2.15(d) shall be distributed to the applicable holders of Outstanding Common Shares if, and only if, it is finally determined in accordance with this Agreement that Parent was not entitled to recover such amounts pursuant to Section 2.11 or pursuant to Article IX. (e) The parties hereto hereby acknowledge and agree that the right of the holders of Outstanding Common Shares to the Earnout Payment Shares, if any, shall not be represented by a certificate or any negotiable or other instrument, shall not represent an ownership interest in cash the Company, Parent or any of their respective Affiliates or their respective businesses or assets (including, from and after the Closing, the assets of the business of the Surviving Corporation) and shall not entitle the holders of Outstanding Common Shares to any rights common to any holder of any equity security of the Company, Parent or wire any of their respective Affiliates. Nothing in this Section 2.15 or elsewhere in this Agreement shall create or be deemed to create a fiduciary duty on the part of the Company, Parent or any of their respective Affiliates to any holder of Outstanding Common Shares in respect of any Earnout Shares. The parties hereto hereby acknowledge and agree that the right of any holder of Outstanding Common Shares to any portion of any Earnout Shares, if any, shall not be transferrable or assignable without the prior written consent of Parent, which shall not be unreasonably withheld or delayed; provided, however, that any attempted transfer or assignment of immediately available fundssuch rights by any holder of Outstanding Common Shares (other than as permitted by the provisions of this Section 2.15(e)) shall be null and void; provided, further, that any such assignment shall be subject to an account designated the restrictions set forth below: (i) such assignment shall not take effect unless and until the proposed assignor shall have delivered a reasonably detailed notice to Parent setting forth the terms of such proposed assignment not less than (A) in the case of a proposed assignment by any holder of Outstanding Common Shares for estate or tax planning purposes, twenty (20) days, or (B) in the case of all other proposed assignments, thirty (30) days, prior to the proposed effective date thereof; (ii) such assignment shall not be for the purpose of avoiding any provisions of this Agreement; (iii) such assignment shall not entitle such permitted assignee to any rights under this Agreement other than the particular economic rights explicitly assigned to such assignee in writing (with such written assignment instrument reviewed and approved in writing by Parent in advance), and the assignment of such economic rights shall automatically and permanently eliminate any claim or entitlement of such assignor with respect to such economic rights; and (iv) prior to the effectiveness of such proposed assignment, the proposed assignor shall deliver to Parent an executed agreement giving effect to such assignment and to indemnify Parent. , Parent and their respective Affiliates, in form and substance reasonably satisfactory to Parent, with respect to any Losses imposed on, sustained, incurred or suffered by or asserted against any Parent Indemnitees arising from, relating to or with respect to such assignment, including any claims or assertions by any other Person that such Person is entitled to any such amounts or payments. (f) In the event payment that, during the Earnout Period, Parent and its Affiliates sells, transfers or assigns all or substantially all of the Earnout Payment shall be prohibited by the terms business of the Debt Financing or any Alternative Financing (Company and its Subsidiaries, as any of them may currently conducted and as currently proposed to be amendedconducted, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer shall pay the maximum amount of the Earnout Payment that may be paid by Buyer pursuant to the Loan AgreementsParent shall, and Buyer shall not cause its Affiliates to, cause the rights and obligations of Parent under this Section 2.15 to be obligated to pay any remainder amount subject to assigned to, and be assumed by, the following: (ipurchaser(s) any amount of such business; provided, that instead of Earnout Shares being issuable, the Earnout Payment not paid shall accrue interest for the period of any deferral at an annual rate equal to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility)Earnout, (ii) any amount of the Earnout Payment not paid and any interest thereon if earned, shall be paid as soon as allowable under in cash by the terms transferee. (g) Notwithstanding anything in this Agreement to the contrary, it is acknowledged and agreed that in no event shall any holder of the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments Eligible Option or any holder of any Series B Preferred Stock have any right to receive any Earnout Shares in respect any situation in connection with such holders Eligible Options and/or shares of management fees or similar fees until the full amount of the Earnout Payment and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunder, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan AgreementsSeries B Preferred Stock.

Earnout Payment. Promptly following (a) Subject to Buyer’s rights to offset in accordance with Article V, the determination Earnout Payments as set forth in this Agreement, Seller shall be eligible to receive earnout payments payable by Buyer in an aggregate amount of up to $2,000,000 (the “Earnout Payments”) as determined in accordance with Schedule 1.6. Any Earnout Payment, if paid, shall be treated as an adjustment to the Purchase Price for tax purposes, except as otherwise required by applicable Law. Any Earnout Payment, if payable, shall be paid in accordance with the terms set forth on Schedule 1.6. (b) Notwithstanding anything to the contrary in this Agreement and subject to the limitations set forth in Article V, the obligation of Buyer to make any Earnout Payment shall be qualified in its entirety by the right of Buyer to reduce the amount of such Earnout Payment in accordance with Article V. (c) Nothing in this Section 1.6 shall limit in any manner (i) Buyer’s ability to operate the Business and use the Acquired Assets in whatever manner Buyer may deem appropriate, and which is in the best interest of Buyer's equityholders, (ii) Buyer’s ability to take any actions that may be required pursuant to any agreement to which Buyer or its Affiliates is a party or otherwise bound by and which applies to and broadly affects Buyer’s business operations in addition to the Business or (iii) any actions that may be required in connection with any bankruptcy, insolvency or other reorganization of Buyer and its operations; provided, however, that (x) Buyer shall act in good faith with respect to the matters set forth in this Section 1.6 and shall not take, or instruct its representatives to take, any action the purpose of which is to reduce any Earnout Payment or result in any Earnout Payment not to be earned and (y) until the expiration of the amount Year 2 Earnout Period (as defined in Schedule 1.6), Buyer will at all times maintain books and records to enable the calculation of the Earnout Payment, if any, in accordance with this Section 1.7, and in any event within thirty (30) days after such determination, Buyer shall pay to Parent the Earnout Payment in cash (or wire transfer of immediately available funds) to an account designated in writing by Parent. In the event payment of the Earnout Payment shall be prohibited by the terms of the Debt Financing or any Alternative Financing (as any of them may be amended, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer shall pay the maximum amount of the Earnout Payment that may be paid by Buyer pursuant to the Loan Agreements, and Buyer shall not be obligated to pay any remainder amount subject to the following: (i) any amount of the Earnout Payment not paid shall accrue interest for the period of any deferral at an annual rate equal to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility), (ii) any amount of the Earnout Payment not paid and any interest thereon shall be paid as soon as allowable under the terms of the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments in respect of management fees or similar fees until the full amount of the Earnout Payment and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunder, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan Agreements.

Earnout Payment. Promptly following (a) Subject to Parent’s rights to off-set any Earnout Payments for any indemnification obligations in accordance with Article VIII of this Agreement, the determination Company shall be eligible to receive the amounts determined in accordance with Exhibit D (“Earnout Payment”). Nothing in this Section 2.10 or Exhibit D shall limit in any manner Parent’s ability to operate the Business and use the Assets in whatever manner Parent may deem appropriate, including setting the commercial terms of any products or services; provided, however, during the Earnout Period (as defined in Exhibit D), Parent shall operate the Business in the Ordinary Course of the amount Business as conducted prior to Closing and shall not intentionally take any action for the sole purpose of reducing or avoiding the payment of the Earnout Payment; and, if anyprovided, further, however, that the Transition Services Agreement entered into between Parent or an Affiliate thereof and Dxxxx Xxxxxxx may not be terminated by Parent or such Affiliate prior to the expiration of the term thereof. Any Earnout Payment made shall be treated as an adjustment to the Purchase Price, except as otherwise required by applicable Law. Notwithstanding anything to the contrary in accordance with this Section 1.7Agreement and subject to the qualifications set forth in Article VIII of this Agreement, and the obligation of Parent to make any Earnout Payment shall be qualified in its entirety by the right of Parent to reduce the amount of such Earnout Payment by the amount of any event within thirty Losses in respect of one or more indemnification claims to which Parent or any Parent Indemnitee is entitled pursuant to Article VIII of this Agreement. (30b) days after such determination, Buyer shall pay to Parent If the Earnout Payment is more than the amount deposited in cash the Earnout Escrow Account, (A) Parent shall pay, or cause the Surviving Corporation to pay, to the Payments Administrator, for distribution to each of the Company Stockholders (pro rata based upon such Person’s Pro Rata Share), other than the Dissenting Stockholders, an amount equal to such difference with respect to such Person’s Pro Rata Share, by wire transfer or delivery of immediately available funds, within three (3) to an account designated in writing by Parent. In Business Days after the event payment of date on which the Earnout Payment shall be prohibited by the terms of the Debt Financing or any Alternative Financing (as any of them may be amended, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer shall pay the maximum amount of the Earnout Payment that may be paid by Buyer is finally determined pursuant to the Loan Agreements, and Buyer shall not be obligated to pay any remainder amount subject to the following: (i) any amount of the Earnout Payment not paid shall accrue interest for the period of any deferral at an annual rate equal to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility), (ii) any amount of the Earnout Payment not paid and any interest thereon shall be paid as soon as allowable under the terms of the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments in respect of management fees or similar fees until the full amount of the Earnout Payment and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunder, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 Exhibit D and (B) simultaneously therewith, Parent and the acceleration Stockholders’ Representative shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release the Earnout Escrow Amount in full from the Earnout Escrow Account to the Surviving Corporation, for further distribution to the Program Participants as set forth in the Consideration Spreadsheet in accordance with the Management Carve-out Program, and the Payments Administrator, for further distribution to the Company Stockholders (pro rata based upon such Person’s Pro Rata Share), other than the Dissenting Stockholders. (c) If the Earnout Payment is less than the amount deposited in the Earnout Escrow Account, then within three (3) Business Days after the date on which the Earnout Payment is finally determined pursuant to Exhibit D, Parent and the Stockholders’ Representative shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to deliver (A) the Earnout Payment to the Surviving Corporation, for further distribution to the Program Participants as set forth in the Consideration Spreadsheet in accordance with the Management Carve-out Program, and/or the Payments Administrator, for further distribution to the Company Stockholders (pro rata based upon such Person’s Pro Rata Share), other than the Dissenting Stockholders, and (B) to Parent an amount equal to the difference between the Earnout Escrow Amount and the Earnout Payment out of indebtedness under the Loan AgreementsEarnout Escrow Account.

Earnout Payment. Promptly (a) As soon as practicable, but in no event later than 90 days following the determination end of each Earnout Payment Period, Buyer shall deliver to Seller, a written computation statement prepared by Buyer setting forth in reasonable detail the amount calculation of EBIT and the Earnout Payment, if any, for such Earnout Payment Period (the "Earnout Payment Statement"). The Earnout Payment Statement shall be prepared in accordance with this Section 1.7, good faith and in conformity with GAAP. (b) After receipt of the Earnout Payment Statement, Seller shall have 30 days to review it. Seller and its representatives shall have reasonable access during normal business hours to all relevant books and records and employees of Buyer in connection with Seller's review of the Earnout Payment Statement. Unless Seller delivers written notice to Buyer on or prior to the 30th day after receipt of the Earnout Payment Statement of its disagreement as to any event within thirty amount or calculation included in or omitted from the Earnout Payment Statement specifying in reasonable detail the basis for its disagreement (30an "Objection"), (i) days after such determination, Seller shall be deemed to have accepted and agreed to the Earnout Payment Statement and (ii) Buyer shall pay to Parent the Earnout Payment in cash (or wire transfer of immediately available funds) to an account designated in writing by Parent. In the event payment of the Earnout Payment shall be prohibited by the terms of the Debt Financing or any Alternative Financing (as any of them may be amended, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer shall pay the maximum amount of the Earnout Payment that may be paid by Buyer pursuant to the Loan Agreements, and Buyer shall not be obligated to pay any remainder amount subject to the following: (i) any amount of the Earnout Payment not paid shall accrue interest for the period of any deferral at an annual rate equal to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility), (ii) any amount of the Earnout Payment not paid and any interest thereon shall be paid as soon as allowable under the terms of the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments in respect of management fees or similar fees until Seller the full amount of the Earnout Payment set forth therein within five (5) business days after the earlier of (x) the expiration of such 30-day period and (y) the date Seller informs Buyer that it has no Objection. If Seller so notifies Buyer of such an Objection to an Earnout Payment Statement, Seller and Buyer shall, within 30 days following the date of such notice (the "Earnout Resolution Period"), attempt to resolve their differences. Any resolution by them as to any accrued disputed amount shall be final, binding, conclusive and unpaid interest thereon has been paid to Parent, (iv) any increase nonappealable. Any amounts set forth in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment Statement which are not in dispute ("Undisputed Amounts") shall be paid by Buyer in immediately available funds by wire transfer to the account(s) designated by Seller within five (5) business days after the date on which Seller notifies Buyer that such amounts are not in dispute. (c) If at the conclusion of an Earnout Resolution Period there are amounts still remaining in dispute, then all amounts remaining in dispute shall be effective for purposes submitted to a firm of determining whether nationally recognized independent public accountants reasonably acceptable to Buyer is obligated and Seller (the "Neutral Auditor"). If the Buyer and the Seller are unable to pay agree on the choice of an accounting firm, they shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Buyer and Seller agree to execute, if requested by the Neutral Auditor, a reasonable engagement letter. The Neutral Auditor shall act as an arbitrator to determine, based solely on presentations by Buyer and Seller, and not by independent review, only those amounts still in dispute. The Neutral Auditor's determination shall be made within 30 days of its engagement, shall be set forth in a written statement (which shall include specific modifications or adjustments to those amounts or calculations in the Earnout Payment hereunderStatement that are in dispute) delivered to Buyer and Seller and shall be final, binding, conclusive and non-appealable. The fees and expenses of the Neutral Auditor shall be allocated between Buyer and Seller so that Seller's share of such fees and expenses shall be equal to the product of (i) and (ii), where (i) is the aggregate amount of such fees and expenses, and where (vii) any unpaid is a fraction, the numerator of which is the amount in dispute that is ultimately unsuccessfully disputed by Seller (as determined by the Neutral Auditor) and the denominator of which is the total amount in dispute submitted to arbitration. The term "Final Earnout Payment Statement," means a definitive Earnout Payment Statement accepted by Seller or agreed to by Buyer and any accrued Seller in accordance with Section 1.8(b) or a definitive Earnout Payment Statement resulting from the determinations made by the Neutral Auditor in accordance with this Section 1.8(c) (in addition to those items theretofore accepted by Seller or agreed to by Buyer and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan AgreementsSeller).

Earnout Payment. Promptly Subject to Section 2(e)(iii)(C) above, for a period of [ * * * ] following the determination Closing Date, Buyer shall pay to the Payment Account as part of the Merger Consideration an amount [ * * * ] from sales of the Products in Canada by Buyer, its affiliates, successors, licensees or assigns (the "Earnout Payment"). Within ninety (90) days after the end of each fiscal year of Buyer and the end of each second quarter of the fiscal year of Buyer during such [ * * * ] period (the "Earnout Payment Date"), Buyer shall pay to the Stockholder Representative the amount of the Earnout Payment earned during such half fiscal year (a "Semi-Annual Earnout Payment, if any, in accordance "). Past due amounts shall bear interest at the default rate of one percent (1.0%) per month from the Earnout Payment Date until paid. Concurrently with this Section 1.7, and in any event within thirty (30) days after such determinationthe payment of a Semi-Annual Earnout Payment, Buyer shall pay deliver to Parent the Stockholder Representative a statement with reasonable supporting detail reflecting Buyer's calculation of the Net Profits from sales of the Products in Canada and the amount of the Semi-Annual Earnout Payment payable by Buyer in respect of such fiscal period (the "Earnout Calculations"). At any time, upon fifteen (15) days prior written notice to Buyer, the Stockholder Representative may appoint, subject to Buyer's reasonable approval, a nationally recognized independent auditor (the "Independent Auditor"), to audit and examine, at Buyer's offices during normal business hours, solely for the purpose of confirming the accuracy of payments hereunder, the Earnout Payment Calculations against all business records of Buyer on which the Earnout Calculations rely, as reasonably requested by the Independent Auditor. Such audit may be made no more often than once in cash every twelve (or wire transfer of immediately available funds12) to an account designated in writing by Parentcalendar month period. In the event payment that an audit reveals an overpayment by Buyer, the Stockholder Representative agrees to promptly refund or credit Buyer for such overpaid amount. In the event that such audit reveals an underpayment by Buyer, Buyer agrees to promptly pay to the Stockholder Representative the amount of such underpayment with interest accumulated thereon at the rate of one percent (1.0%) per month from the applicable Earnout Payment Date until such payment. The fees, costs and expenses of the Earnout Payment Independent Auditor shall be prohibited advanced by the terms of the Debt Financing or any Alternative Financing (as any of them may be amended, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer shall pay the maximum amount of the Earnout Payment that may be paid Stockholder Representative and borne by Buyer pursuant to and the Loan Agreements, and Buyer shall not be obligated to pay any remainder amount subject to the following: (i) any amount of the Earnout Payment not paid shall accrue interest for the period of any deferral at an annual rate equal to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility), (ii) any amount of the Earnout Payment not paid and any interest thereon shall be paid as soon as allowable under the terms of the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments in respect of management fees or similar fees until the full amount of the Earnout Payment and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase Stockholder Representative in the Availability (as defined in same proportion that their respective positions are confirmed or rejected by the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunder, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan AgreementsIndependent Auditor.

Earnout Payment. Promptly following the determination of the amount of the The Earnout PaymentAdjustment Amount, if any, shall be determined immediately following the last day of the Earnout Period in accordance with the following procedure: (a) Within 60 days after the end of the Earnout Period, the Purchaser shall deliver to the Vendors the Purchaser’s calculation of the Earnout Adjustment Amount (the “Calculated Adjustment”). For greater certainty, the Earnout Amount shall not be paid until after the Earnout Adjustment Amount, if any, has been determined after the end of the Earnout Period in accordance with this Section 1.72.8, regardless of whether the Corporation achieves Cumulative Revenue equal to the Earnout Target prior to the end of the Earnout Period. (b) The Vendors shall have the right to dispute in writing the Calculated Adjustment within 15 days following delivery of the calculation of the Calculated Adjustment (such 15-day period, the “Notice Period”). If the Purchaser does not receive a notice of such a dispute from the Vendors within the Notice Period, the Calculated Adjustment shall be deemed to be the Earnout Adjustment Amount and the Earnout Amount shall be final and binding for purposes hereof, absent manifest error or fraud. If the Purchaser receives a notice of such a dispute from the Vendors within the Notice Period, then the Purchaser and the Vendors shall, for an additional 10 days following the Purchaser’s receipt of such notice of dispute (such additional 10-day period, the “Resolution Period”), attempt to reach agreement on the Calculated Adjustment. (c) If no resolution of this dispute is finalized within the Resolution Period, undisputed amounts shall be paid by the Purchaser to the Vendors in accordance with Section 2.8(3)(d), and only the disputed items or amounts shall be submitted for review and final determination by an Independent Accountant. The Independent Accountant shall review all relevant data, including any necessary books and records of the Purchaser and the Corporation, to determine the changes to the Calculated Adjustment, if any, necessary to resolve only the disputed items or amounts. The determination by the Independent Accountant shall be made as promptly as practical, but in any event within thirty (30) days after such determinationno event, Buyer beyond 30 days, and shall pay to Parent be final and binding on the Earnout Payment in cash (or wire transfer of immediately available funds) to an account designated in writing by Parentparties hereto. In the event payment that the final Earnout Adjustment Amount differs from the Calculated Adjustment by a positive number, the costs of the Independent Accountant shall be borne by the Purchaser. In the event that the final Earnout Adjustment Amount differs from the Calculated Adjustment by a negative number, the costs of the Independent Accountant shall be borne by the Vendors. (d) Within 10 Business Days following the final determination of the Earnout Payment shall be prohibited by Amount in accordance with the terms of foregoing, the Debt Financing or any Alternative Financing (as any of them may be amended, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer Purchaser shall pay to the maximum amount of Vendors, in their pro rata shares set out in Exhibit A by wire transfer to the coordinates set out in Exhibit B, the Earnout Payment that may be paid by Buyer pursuant to the Loan AgreementsAmount, and Buyer shall not be obligated to pay any remainder amount subject to the following: (i) any amount of the Earnout Payment not paid shall accrue interest for the period of any deferral at an annual rate equal to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility), (ii) any amount of the Earnout Payment not paid and any interest thereon shall be paid as soon as allowable under the terms of the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments in respect of management fees or similar fees until the full amount of the Earnout Payment and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunder, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan Agreementsany.

Earnout Payment. Promptly following the determination of the amount of the Earnout Payment, if any, in accordance with this Section 1.7, and in any event within thirty (30i) days after such determination, Buyer The Purchaser shall pay to Parent the Seller an Earnout Payment if the Windows Companies generate earnings before interest, taxes, depreciation and amortization (“Windows EBITDA”) with respect to the fiscal year ending June 30, 2024 (the “Earnout Period”) in excess of the Windows EBITDA milestone amount set forth on Schedule 2.3(a) of the Disclosure Schedules (the “Earnout Target”). (ii) To the extent that the Windows EBITDA exceeds the Earnout Payment in cash Target, the Purchaser shall pay to the Seller an amount equal to the difference between the Windows EBITDA and the Earnout Target multiplied by 10, subject to a maximum of $65,000,000 (or wire transfer the “Earnout Payment”). Schedule 2.3(a) of immediately available funds) to an account designated in writing by Parentthe Disclosure Schedules sets forth the methodology on how the Windows EBITDA shall be determined (the “Windows EBITDA Methodology”). In For the event payment avoidance of doubt, numerical examples of the Earnout Payment payable at various Windows EBITDA levels are set forth on Schedule 2.3(a) of the Disclosure Schedules. (iii) For the avoidance of doubt, (i) there shall be prohibited by no carryforward of Windows EBITDA from any period prior to the terms fiscal year ending June 30, 2024 in the determination of whether the Debt Financing or any Alternative Financing Earnout Target was met and (as any of them may be amended, waived, modified, refinanced, replaced or supersededii) (the “Loan Agreements”), Buyer shall pay the maximum amount of in no event will the Earnout Payment that may be paid by Buyer pursuant to the Loan Agreements, and Buyer exceed $65,000,000. (iv) The Seller shall not be obligated entitled to pay any remainder amount subject to the following: (i) any amount of interest on the Earnout Payment not paid shall accrue interest for Payment. (v) Notwithstanding the period of foregoing, any deferral at an annual rate equal to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility), (ii) any amount of the Earnout Payment not paid and any interest thereon shall be paid as soon as allowable under the terms of the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments in respect of management fees or similar fees until the full amount of the Earnout Payment and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes allocated among the Seller and the Other Sellers such that each of determining whether Buyer is obligated to pay the Seller and each Other Seller receives a percentage of such Earnout Payment hereunder, and (v) any unpaid amount of in accordance with the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan Agreements.allocation set forth in Exhibit D.

Earnout Payment. Promptly following (a) If the determination of the amount of Minimum Revenue Target is attained for the Earnout PaymentPeriod, if any, in accordance with this Section 1.7, and in any event within thirty (30) days after such determination, Buyer shall pay to Parent the Earnout Payment in cash equals an amount equal to (or wire transfer of immediately available fundsi) to an account designated in writing the Earnout Amount, multiplied by Parent(ii) the Payment Rate, but only if the Earnout Amount is a positive number. In If the event payment of the Earnout Amount is a negative number, no Earnout Payment shall be prohibited by made. (b) If the terms of Minimum Revenue Target is not attained for the Debt Financing or any Alternative Financing (as any of them may be amendedEarnout Period, waived, modified, refinanced, replaced or superseded) (the “Loan Agreements”), Buyer shall pay the maximum amount of then the Earnout Payment that may is reduced to be fifty percent (50%) of what it would have been under Paragraph 4(a) above. (c) The final Earnout Payment, after any other reductions, is reduced for any Retention Bonuses. (d) The Earnout Payment will be paid by Buyer pursuant within sixty (60) days after the final determination of the Earnout Amount. Notwithstanding any provision in this Appendix II to the Loan Agreementscontrary, and Buyer shall not in no event will the Earnout Payment exceed $750,000. The Earnout Payment will be obligated to pay any remainder amount subject allocated between the Sellers as set forth on Exhibit B to the followingAgreement. (e) The Earnout Payment shall be payable at the option of Buyer as follows: (i) in immediately available funds via wire transfer to a bank account designated by Sellers; (ii) in issued shares of GEE Common Stock which shall be valued as set forth in Paragraph 6 below; or (iii) any amount combination of the foregoing clauses (i) and (ii). (f) Sellers shall not be entitled to any interest on the Earnout Payment under this Appendix II. (g) Upon notice to Sellers' Representative specifying in reasonable detail the basis therefor, Buyer may set off any amount to which it claims to be entitled from any Seller under the Agreement, or otherwise, against amounts otherwise payable under this Appendix II. The exercise of such right of setoff by Buyer in good faith, whether or not paid shall accrue interest ultimately determined to be justified, will not constitute a default under this Appendix II, regardless of whether any Seller disputes such setoff claim, or whether such setoff claim is for a contingent or unliquidated amount. Neither the period exercise of, nor the failure to exercise, such right of setoff will constitute an election of remedies or limit Buyer in any manner in the enforcement of any deferral at an annual rate equal other remedies that may be available to the interest rate applicable to the Senior Debt Financing (or any replacement or refinanced facility), (ii) any amount of the Earnout Payment not paid and any interest thereon shall be paid as soon as allowable under the terms of the Loan Agreements, (iii) Buyer and its subsidiaries may not make any payments in respect of management fees or similar fees until the full amount of the Earnout Payment and any accrued and unpaid interest thereon has been paid to Parent, (iv) any increase in the Availability (as defined in the Loan Agreements) required in order for Buyer to make the Earnout Payment shall not be effective for purposes of determining whether Buyer is obligated to pay the Earnout Payment hereunder, and (v) any unpaid amount of the Earnout Payment and any accrued and unpaid interest thereon shall be due and payable (but shall continue to accrue interest if still unpaid) upon the first to occur of (A) October 1, 2013 and (B) the acceleration of indebtedness under the Loan Agreementsit.