Common use of Earnout Clause in Contracts

Earnout. (a) As part of the Purchase Price, the Buyer shall pay or cause to be paid to the Seller the Earnout Amount as determined in accordance with this Section 2.9 (the “Earnout Payment”), upon the later to occur of (x) thirty-one (31) days after the delivery by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid. (b) The amount of the Earnout Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiter. (h) After delivery of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privileged.

Earnout. (a) As part Until the fifth (5th) anniversary of the Purchase PriceClosing, no later than the tenth (10th) day of each calendar month, Buyer shall pay or cause to be paid Seller an amount in cash to the account set forth on Section 2.11(a) of the Seller the Earnout Amount Disclosure Letter (or to such other account as determined in accordance with this Section 2.9 may be specified by Seller from time to time) (the “Designated Account”) equal to the Monthly Earnout Payment”)Amount for the immediately preceding calendar month. For the avoidance of doubt, upon the later to occur Monthly Earnout Amount is independent of (x) thirty-one (31) days after any performance at the delivery Facility and shall be due and payable regardless of the operating capacity, operating condition or actual operation of the Facility, or the actual purchase of natural gas or sale of power by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paidFacility. (b) The amount of the Earnout Payment (the “Earnout Amount”) Concurrently with, or prior to, each payment described in Section 2.11(a), Buyer shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess Monthly Earnout Amount for the 2012immediately preceding month, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years which such calculation shall be prepared presented in the form attached as Exhibit E (each, a “Monthly Earnout Statement”). If Seller objects to any matter set forth in the Monthly Earnout Statement, then it shall provide Buyer written notice thereof (an “Objection Notice”) within ten (10) days after receipt thereof; provided, that Seller and Buyer shall be deemed to have agreed upon all items and amounts in the Monthly Earnout Statement that are not disputed by Seller in such written notice. If Buyer and Seller are unable to agree on any matter set forth in such Objection Notice in accordance with this Agreement Section 2.11(b) within thirty (30) days after delivery of such Objection Notice, the Parties shall submit such dispute to the Independent Accountants, shall cause such firm to make a final and GAAP binding determination as to only those matters in dispute on a timely basis, and, in any event, within thirty (30) days following its appointment, and shall cause such firm promptly to notify the Parties in writing of its resolution. In making such determination, such firm shall (i) limit its review to matters specifically set forth in such Objection Notice as disputed items (other than matters subsequently resolved), and (ii) not assign to any such disputed item a value higher than or lower than the values set forth in the Monthly Earnout Statement or such Objection Notice. The Parties shall not authorize the Independent Accountants to modify or amend any term or provision of this Agreement or modify items previously agreed among the Parties. Each of Seller and Buyer shall be accompanied by any financial statements liable for and pay one-half of the North American Business used in calculating EBITDA, all of which shall be certified fees and other costs charged by the Chief Financial Officer Independent Accountants in connection with any dispute under this Section 2.11(b). If (or officer A) Seller does not object to any amounts set forth in a Monthly Earnout Statement within the time period and in the manner set forth in the first sentence of equivalent or similar positionthis Section 2.11(b), (B) Seller consents in writing to any of the amounts set forth therein, (C) any amounts are agreed to in writing by the Parties or (D) the Independent Accountants have made a final and binding determination of any amounts in accordance with this Section 2.11(b), then such amounts shall become final, binding and non-appealable upon the Parties for all purposes hereunder. (c) If ERCOT posts any correction to any Day-Ahead Market price, the Parties shall adjust the Monthly Earnout Amount for any calendar month affected by such correction. If any such correction results in an increase in any Monthly Earnout Amount, Buyer Subshall pay to Seller an amount equal to such increase (i) before the Monthly Earnout Amount for such amount is paid, by increasing such Monthly Earnout Amount when paid or (ii) after the Monthly Earnout Amount for such amount is paid, by payment in cash by Buyer to Seller to the Designated Account simultaneously with the next succeeding Monthly Earnout Amount or, if there are no further Monthly Earnout Amounts due, within ten (10) Business Days after such correction is posted. If any such correction results in a decrease in any Monthly Earnout Amount (A) before the Monthly Earnout Amount for such month is paid, Buyer shall decrease the payment to Seller by an amount equal to such decrease or (B) after the Monthly Earnout Amount for such month is paid, (1) to the extent the amount of such decrease is less than or equal to the next succeeding Monthly Earnout Amount, Buyer shall reduce the next succeeding Monthly Earnout Amount by an amount equal to such decrease, (2) to the extent the amount of such decrease is more than the next succeeding Monthly Earnout Amount, Buyer shall reduce the next succeeding Monthly Earnout Amount to zero and Seller shall pay to Buyer an amount equal to the excess of such decrease over such Monthly Earnout Amount within ten (10) Business Days after such correction is posted, or (3) if there are no further Monthly Earnout Amounts due, Seller shall pay to Buyer an amount equal to such decrease within ten (10) Business Days after such correction is posted. (d) If the Permian Gas Index, the Waha Gas Index or the Odessa Market Price (each, an “Index”) is temporarily unavailable for any reason, including the unavailability of the specified service or publication reporting such Index, then the Parties shall use good faith efforts to find a suitable replacement index for such temporary period. If any Index is unavailable for a period of one hundred and eighty (180) consecutive days or more or ceases to be published, then the Parties shall cooperate in good faith to promptly select a suitable replacement publication or reference price that is generally accepted in the energy industry. If the Parties are unable to agree on a replacement publication(s) or reference price within a thirty (30)-day period, then either Party may refer the matter to the Independent Accountants on terms that the Independent Accountants shall provide a substitute market publication(s) or reference price or a combination thereof to be the new Index for calculation of the Gas Cost or Power Price, as applicable. (e) The Seller Representative must give written notice Notwithstanding anything to the Buyer Parentcontrary contained in this Agreement, Seller shall be permitted to transfer its rights and the Buyer Parent must give written notice obligations pursuant to the Seller Representative (eachthis Section 2.11, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, so long as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Partiestransfer complies with applicable Law. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiter. (h) After delivery of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privileged.

Earnout. (ai) As part of If EBITDA for the Purchase PriceEarnout Period equals or exceeds the EBITDA Target, the then Buyer shall pay or cause to be paid Seller an aggregate amount equal to the Seller the Earnout Amount as determined in accordance with the terms and conditions of this Section 2.9 1E. (ii) For purposes of such calculation, EBITDA for the Earnout Period shall be determined on the basis of the financial statements for the Enterprise Group for the Earnout Period (with it being understood and agreed that whenever there is a reference to financial statements for the Earnout Period (whether audited or unaudited), such financial statements shall be deemed to include references to both predecessor and successor financial statements and that the financial statements so delivered shall be for the Enterprise Group alone (or the Person(s) owning the Enterprise Group, as long as such financial statements reflect only the results of the Enterprise Group)). Promptly after such audited financial statements are finalized (but in no event later than June 30, 2008), Buyer shall deliver such audited financial statements (or, to the extent that audited financial statements are not delivered on or prior to such date, Buyer shall deliver to Seller the unaudited financial statements of the Enterprise Group for the Earnout Period and as soon as completed, the audited financial statements for the Enterprise Group for the Earnout Period) and any and all work papers or back-up documentation reasonably requested by Seller. Buyer’s calculation of any payment under this Section 1E shall be conclusive and binding upon the parties unless within thirty (30) calendar days following Seller’s receipt of the audited financial statements (or, at Seller’s election, unaudited financial statements), schedules, work papers and back-up documentation, Seller notifies Buyer in writing that it disagrees with Buyer’s computation of EBITDA for the Earnout Period. Such notice by Seller shall include a schedule setting forth Seller’s computation of EBITDA, together with a copy of any financial information, other than that previously supplied by Buyer to Seller, used in making Seller’s computation. Buyer and Seller will use commercially reasonable efforts to resolve any disagreement as to the computation of EBITDA for the Earnout Period as soon as practicable, but if they cannot reach a final resolution within thirty (30) calendar days after Buyer has received Seller’s notice, then Buyer and Seller will jointly select a nationally recognized independent accounting firm that is not the independent auditor of either of the parties or any other nationally recognized firm with experience in analyzing and making determinations concerning the matters in this Section 1E (the “Earnout PaymentFirm”)) to resolve their disagreement. If the Earnout Firm selected by the parties cannot, upon or is not willing to, act as the later to occur Earnout Firm in accordance with the provisions of this Agreement, then Buyer and Seller shall each select a Person that meets the criteria for an Earnout Firm (xeach, an “Eligible Earnout Firm”) thirty-one at the end of such time period and such Eligible Earnout Firms shall, within five (315) days after their selection, jointly select a third Eligible Earnout Firm to act as the delivery Earnout Firm pursuant to the provisions of this Agreement. Any Earnout Firm selected pursuant to this Section 1E(ii) shall be deemed the Earnout Firm for all purposes of this Agreement. Buyer and Seller will direct the Earnout Firm to render a determination within thirty (30) calendar days of its retention, and Buyer, Seller and their respective agents will cooperate with the Earnout Firm during its engagement. The Earnout Firm’s determination will be based solely on the presentations and supporting material provided by Buyer and Seller and on this Agreement and not pursuant to any independent review. The determination of EBITDA for the Earnout Period by the Earnout Firm will be conclusive and binding upon Buyer Sub and Seller and shall be non-appealable (absent manifest error). The fees and expenses of the Earnout Statement Firm pursuant to this Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment 1E shall be paid by wire transfer Seller, on the one hand, and Buyer, on the other hand, based on the ratio of immediately available funds pursuant the disputed amount not awarded to wire transfer instructions provided by the Seller such Person to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid. (b) The total amount of the Earnout Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, actually disputed by Seller and (2) $0Buyer. For example, if the Average North American Excess aggregate amount disputed by Seller is $25.0 million1,000, and if Buyer contests only $500 of the amount disputed by Seller, and if the Earnout Amount would be Firm ultimately resolves the dispute by finding that Seller properly disputed $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations 300 of the EBITDA $500, then the fees and expenses of the North American Excess for the preceding calendar yearEarnout Firm will be paid 60% (i.e., 300÷500) by Buyer and 40% (i.e., 200÷500) by Seller. The statement shall be prepared date that the computation of EBITDA becomes final in accordance with this Agreement and GAAP is referred to herein as the “EBITDA Determination Date.” (iii) During the Earnout Period, Buyer shall not, and shall cause its controlled Affiliates not to, take any action with a principal purpose to reduce EBITDA for the Earnout Period. Unless such election would contravene, or be accompanied inconsistent with, GAAP (as applied by any financial statements Seller in prior fiscal years), all available accounting elections (including those relating to the capitalization of charges and the setting up of reserves) shall, solely for purposes of this Section 1E, be made consistent with the 2006 Statement of Revenues and Expenses. In the event that, prior to the end of the North American Business used in calculating EBITDAEarnout Period, all there is any (w) sale, license or transfer of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) any material portion of the Buyer Sub. The Buyer Parent and assets of the Seller Representative may discuss Enterprise Group to a Person (including DevShed) (other than sales of assets in the calculation ordinary course of EBITDA and business consistent with past practice), (x) reorganization, merger or consolidation involving the North American Excess and make Enterprise Group or any mutually agreed changesassets with or into any other Person constituting a separate business (including DevShed), but (y) acquisition of all of, or any significant portion of, the failure to do so shall not prejudice the rights assets of any Party pursuant other Person by Buyer, or (z) entry into any joint venture, partnership, strategic alliance or other similar business arrangement involving the Enterprise Group with any other Person, the parties shall cooperate in good faith and effect an appropriate adjustment to this Section 2.9the EBITDA Target. (div) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver Notwithstanding anything in this Section 1E to the contrary, in the event that prior to June 30, 2008, Buyer Parent and or any Affiliate thereof that, directly or indirectly, owns or operates the Seller Representative Enterprise Group, (A) files a registration statement with respect to an initial public offering of its equity securities (the an “Earnout StatementIPO”) setting forth its good faith calculation or (B) enters into a definitive agreement with an unaffiliated third party (it being understood that DevShed is an Affiliate of Buyer) for the sale, transfer or license (however structured and whether direct or indirect) of all or substantially all of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements assets of the North American Business used in calculating EBITDA, Enterprise Group or all or substantially all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) equity securities of the Buyer Sub. Person that owns the assets of the Enterprise Group (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (each, an a “Earnout Statement Objection NoticeSale Event”), specifying then on the date the registration statement filed in reasonable detail connection with the Seller Representative’s IPO is declared effective by the SEC, or the Buyer Parent’s objectionsclosing of a Sale Event, as the case may be, Buyer shall pay to Seller an amount equal to $10,000,000 less any Earnout Amount previously paid by Buyer to Seller. Notwithstanding anything herein to the contrary, with respect to a Sale Event, Buyer shall not be obligated to pay any amount reflected on to Seller upon the closing of a Sale Event unless the consideration received in connection with such Sale Event or the enterprise valuation implied by the IPO for the Person selling equity securities therein exceeds $200,000,000. (v) If earned, the Earnout Statement within 30 calendar days Amount shall be paid by Buyer to Seller not later than the 2nd business day after receipt the EBITDA Determination Date and any amount required to be paid pursuant to Section 1E(iv) shall be paid when required thereunder. If not paid when due, without limiting the rights of Seller to make claim for payment of the Earnout Statement. Any item Amount or other amount required to be paid pursuant to Section 1E(iv), the amount owed shall accrue interest on a daily basis at the Prime Rate per annum, calculated on the Earnout Statement to which basis of the Seller Representative number of days from and after the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed date such payment is required to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution made to the Appointed Arbiterdate of payment. The Buyer Parent and the Amounts paid to Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter pursuant to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report this Section 1E shall be an adjustment to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed ArbiterClosing Purchase Price. (h) After delivery of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privileged.

Earnout. (a) As part of the Purchase Price, the Buyer shall pay or cause to be paid to the Seller the Earnout Amount as determined in accordance with this Section 2.9 (the “Earnout Payment”), upon the later to occur of (x) thirty-one (31) days after the delivery by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid. (b) The amount of the Earnout Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiter. (h) After delivery of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) ) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privileged.

Earnout. (a) As part Standard Pacific shall cause Buyer to pay to each Seller its Pro Rata Portion of an aggregate amount equal to 15% of the positive Company Pre-Tax Income for the period from the Balance Sheet Date through December 31, 2002, and each of the three years ending December 31, 2003, 2004 and 2005 (each an "Earnout Payment" and collectively, the "Earnout"). If the amount of Company Pre-Tax Income generated is negative with respect to any period, such negative amount shall be carried forward to the following year and such negative amount shall be deducted from the Company Pre-Tax Income for purposes of calculating the Earnout Payment for such following year. In addition, to the extent necessary, such negative amounts shall be carried forward for successive periods in which the Earnout is paid until offset by positive Company Pre-Tax Income. (b) Not later than 10 days after the audit committee of the Board of Director's of Standard Pacific approves Standard Pacific's year-end financial statements for the periods in respect of which Earnout Payments may be due, Buyer shall prepare and deliver to the Sellers' Representative Buyer's calculation of the Earnout Payment for the immediately preceding fiscal year. Within 20 days following Buyer's notification to the Sellers' Representative of its calculation of the applicable Earnout Payment, the Sellers' Representative shall deliver to Buyer a notice of objection signed by the Sellers' Representative (an "Earnout Objection Notice") or a notice of acceptance signed by the Sellers' Representative (an "Earnout Acceptance Notice") with respect to the calculation of the Earnout Payment. Buyer shall provide the Sellers' Representative and its accountant and other representatives, upon reasonable advance notice, access to the books and records of the Acquired Companies relating to the calculation of the Earnout Payment as may be reasonably requested by the Sellers' Representative. Buyer's calculation of each Earnout Payment shall be final and binding on the parties if an Earnout Acceptance Notice is delivered to Buyer or if no Earnout Objection Notice is delivered to Buyer within such 20 day period. Any Earnout Objection Notice shall specify the items disputed, shall describe the reasons for the objection thereof, shall state the amount in dispute and shall state the Sellers' calculation of the Earnout Payment. If an Earnout Objection Notice is delivered, the potential dispute shall be resolved as set forth in Section 2.6. (c) If the Sellers' Representative delivers to Buyer the Earnout Acceptance Notice referred to in Section 2.5(b) or the Sellers' Representative fails to deliver an Earnout Objection Notice within the 20 day period required by Section 2.5(b) with respect to any Earnout Payment, Buyer shall pay to the Sellers their Pro Rata Portion of any amounts which Buyer's calculation shall indicate to be owed to the Sellers within five Business Days after the delivery of such Earnout Acceptance Notice or the expiration of such 20 day period, as the case may be. Alternatively, if the Sellers' Representative delivers to Buyer the Earnout Objection Notice referred to in Section 2.5(b), within five Business Days after such delivery, Buyer shall pay the Sellers their Pro Rata Portion of the undisputed portion, if any, of the amount owed and, within five Business Days after the resolution of any dispute by the parties or the Unrelated Accounting Firm relating to the Earnout Objection Notice, Buyer shall pay the Sellers their Pro Rata portion of the remainder owed, if any. Any payment pursuant to this Section 2.5 shall be considered an adjustment to the Purchase Price, and shall be made in immediately available funds. The applicable Pro Rata Portion of the payment shall be delivered to each Seller by wire transfer to the account designated in writing by such Seller to Buyer at least three days prior to such payment. If Buyer has not delivered its calculation of the Earnout Payment for any applicable fiscal year to the Sellers' Representative by January 31 of the following fiscal year, Buyer shall be obligated to pay simple interest on the Earnout Payment at the rate of 8% per annum calculated beginning on February 1 of such following fiscal year and ending on the day Buyer's calculation is delivered. (d) From the Closing Date until January 1, 2006 (or cause until the payment in full of the Earnout, if earlier), Standard Pacific: (i) shall not, without the prior written consent of the Sellers' Representative, commingle the business of the Company and its Subsidiaries with any other division of Standard Pacific; provided, however, that the Sellers acknowledge and agree that (A) Standard Pacific may in good faith (and not for the intended purpose of avoiding or limiting its obligations with respect to the Earnout Payments under this Section 2.5) elect to consolidate certain management, corporate or administrative functions across two or more divisions, and that if it does so, it will reasonably allocate the overhead cost of such functions across the participating divisions; (B) Standard Pacific may restructure the business of the Company and its Subsidiaries into any number of separate entities so long as such restructuring does not result in the commingling of the business of the Company and its Subsidiaries with any other division of Standard Pacific (all references to the Company and its Subsidiaries in this Section 2.5(d) includes the business of the Company and its Subsidiaries restructured as described in this Section 2.5(d)(i)), and (C) Standard Pacific will sweep cash out of the Company and its Subsidiaries in the manner that Standard Pacific sweeps cash from Standard Pacific's other divisions (such swept cash to be treated as a non-interest bearing intercompany receivable of the Company and its Subsidiaries in the same manner as Standard Pacific's other divisions); (ii) shall not, without the prior written consent of the Sellers' Representative, burden the Company and its Subsidiaries with debt incurred on behalf of the operations of Standard Pacific, other than the operations of the Company and its Subsidiaries; provided, however, that the Sellers acknowledge and agree that (A) the Company and its Subsidiaries may be guarantors of various obligations of Standard Pacific; (B) general corporate overhead will be allocated to the Company and its Subsidiaries in the same manner as such overhead is allocated to Standard Pacific's other divisions from time to time, provided that such general corporate overhead allocation shall not be less than 1.00% nor greater than 1.30% of the aggregate revenues of the Company and its Subsidiaries; (C) the cost of insurance will be allocated to the Company and its Subsidiaries in the same manner as it is allocated to Standard Pacific's other divisions based on claims history, product type, volume and other relevant factors; and (D) intercompany interest will be charged on qualified assets (as described in SFAS 34 "Capitalization of Interest"), stale inventory, investments in joint ventures and on such other assets as Standard Pacific may charge its other divisions from time to time; (iii) shall provide to the Company an amount of capital reasonably necessary to accomplish the Business Plan; provided, however, that the Sellers acknowledge and agree that the Business Plan may be revised in such a manner so as to result in a reduction in the amount of capital reasonably necessary to accomplish the revised Business Plan either, (A) by the mutual agreement of Standard Pacific and the Sellers' Representative, or (B) by Standard Pacific, acting alone, to reflect then current market conditions and actual operating results of the Company and its Subsidiaries if the Company and its Subsidiaries fail to meet or exceed budgeted Company Pre-Tax Income as set forth in the Business Plan for any particular year, provided that Standard Pacific will consult in good faith with the Sellers' Representative prior to taking any such action and in developing any revised Business Plan; and (iv) shall not, without the prior written consent of the Sellers' Representative, begin any "start-up" home building operations outside of the corporate structure of the Company and its Subsidiaries in any area located in South West Florida (i.e. the counties of Citrus, Hernando, Pasco, Polk, Hillsborough, Pinnellas, Manatee, Sarasota, Charlotte, Xxx and Xxxxxxx), North Carolina or South Carolina; provided however, that Standard Pacific and its Affiliates may acquire additional homebuilding businesses (by purchase of assets or stock, by merger or otherwise) which operate in the foregoing markets; but in such event, Standard Pacific shall not, without the consent of the Sellers' Representative, (A) commingle any assets, liabilities or operations of the acquired businesses with that of the Company and its Subsidiaries, (B) permit any such acquisitions to diminish the capital available to the Company and its Subsidiaries pursuant to subsection (iii) above, or (C) permit any such acquired businesses to use the same trade name as then used by the Company or its Subsidiaries in such overlapping market. (e) In the event of a Change of Control of Standard Pacific, payment of the Earnout Payment for each period that has not been completed shall be accelerated and the discounted amount shall be paid in full to the Sellers, as set forth in this Section 2.5(e), upon consummation of the Change of Control transaction. For purposes of calculating the Earnout Payments to be paid upon a Change in Control, the Earnout Payment for each period which has not been completed on the date of consummation of the Change in Control transaction shall equal 15% of the projected Company Pre-Tax Income for each such period, as set forth in Standard Pacific's then current business plan of the Company and its Subsidiaries for such periods (less any negative amounts carried forward to such periods pursuant to Section 2.5(a)). Such amount shall be discounted to its present value on the date of the consummation of the Change of Control payment based on a discount rate of 8%, and assuming each Earnout Payment for each such period would be made on January 31 of the next succeeding year. (f) In the event that the employment of Xxxxx Xxxxxxxx is terminated by Buyer or the Acquired Companies without Cause or by Xxxxx Xxxxxxxx for Good Reason (each, as defined in the Employment Agreement of Xxxxx Xxxxxxxx attached hereto as Exhibit C-1), the aggregate Earnout Payment to be paid to the Seller the Earnout Amount Sellers for each period that has not yet been completed as determined in accordance with this Section 2.9 (the “Earnout Payment”), upon the later to occur of (x) thirty-one (31) days after the delivery by the Buyer Sub of the Earnout Statement date of such termination shall equal (regardless of the actual results of operations of the Company and its Subsidiaries) 15% of the positive budgeted Company Pre-Tax Income for each such period, as set forth in the Business Plan for such period (less any negative amounts carried forward to such period pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e2.5(a)). The Each such Earnout Payment shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by the Seller Buyer to the Buyer Parent at least two Business Days prior Sellers not later than January 31 of the year following the period with respect to the date the which such Earnout Payment is required to be paid. (b) The amount of the Earnout Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Partiesdue. (g) If Neither the Buyer Parent and Earnout nor any interest therein shall be transferable by any Seller in any manner other than by will or the Seller Representative are unable laws of descent or distribution, provided however, it shall not be a violation of this Section 2.5(g) if the Xxxxxxxx Children Sellers transfer their interests in the Earnout to resolve all disputed items within the 20-day period set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution Xxxxx Xxxxxxxx pursuant to the Appointed Arbiterso-called Section 4(1 1/2) exemption or other exemption from federal securities law, provided that the transfer is in compliance with all requirements of such exemption and other applicable securities laws, and written notice of any such transfer is delivered to Standard Pacific no later than December 31, 2002. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on payable even if the Parties, except to correct manifest clerical Employee Sellers are not employed by the Company or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiterits Subsidiaries. (h) After delivery of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privileged.

Earnout. For the period beginning October 1, 2022 and ending September 30, 2023 (athe “Earnout Period”), Sellers shall be eligible to obtain an earnout payment equal to the amount (if any) As part by which Revenue for all of the Purchase Price, the Buyer shall pay or cause to be paid to the Seller Stores during the Earnout Amount as determined in accordance with this Section 2.9 Period exceeds $32,000,000 (the “Earnout Payment”). Buyer shall be under no obligation to pay Sellers the Earnout Payment unless the conditions set forth in this Section 1.5 are satisfied. (a) Procedures applicable to determination of Earnout Payment. (i) As soon as practicable after the Earnout Period, but in no event later than 45 calendar days after the Earnout Period, the Buyer shall prepare and deliver to the Seller Representative an unaudited statement setting forth the Revenues of the Stores for the fiscal year ending September 30, 2023 (the “Earnout Revenue Statement”), prepared based on the information relating to the Stores included in or used in the preparation of the Buyer’s audited 2022 financial statements and in accordance with GAAP. If the Stores’ Revenue as set forth in such Earnout Revenue Statement is in excess of $32,000,000 (the “Earnout Requirement”), then the Buyer shall pay the Seller Representative the Earnout Payment within ten Business Days of the date as the Earnout Payment is finally determined in accordance with this Section 1.5. (ii) The Seller Representative will have the right, at its sole cost and expense, to review all records, work papers and calculations related to the Stores that are pertinent to the Earnout Revenue Statement and to discuss any questions with Buyer. The Seller Representative will have thirty (30) days after delivery of the Earnout Revenue Statement in which to notify Buyer in writing (such notice, an “Earnout Dispute Notice”) of any discrepancy in, or disagreement with, the Stores’ Revenues as set forth in the Earnout Revenue Statement (and specifying the amount in dispute and setting forth in reasonable detail the basis for such discrepancy or disagreement), and upon agreement by Buyer regarding the adjustment requested by the Seller Representative, an appropriate adjustment will be made thereto. If the Seller Representative does not deliver an Earnout Dispute Notice to Buyer during such 30-day period, the Earnout Revenue Statement will be deemed to be accepted in the form presented to the Seller Representative. If Buyer disagrees with any Earnout Dispute Notice, Buyer and the Seller Representative shall work together in good faith to resolve the disagreement. If Xxxxx and the Seller Representative cannot agree (within thirty (30) days after timely delivery of an Earnout Dispute Notice) to resolve any discrepancy or disagreement therein, the discrepancy or disagreement will be promptly submitted for review and final determination by the Arbitration Firm. The review of the Arbitration Firm will be limited to the discrepancies and disagreements regarding the amount of the Stores’ Revenues set forth in the Earnout Revenue Statement set forth in the Earnout Dispute Notice, and the resolution of such discrepancies and disagreements by the Arbitration Firm will be (i) in writing, (ii) made in accordance with GAAP consistently applied in accordance with past practices, (iii) no greater than the higher Revenue amount calculated by Seller Representative, and no lower than the lower Revenue amount calculated by Buyer, (iv) made as promptly as practical after the submission of such discrepancies and disagreements to the Arbitration Firm (but in no event later to occur of than thirty (x) thirty-one (3130) days after the delivery by date of submission) and (v) final and binding upon, and non-appealable by, the parties to this Agreement and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. If the Arbitration Firm determines that the Stores achieved the Earnout Requirements, then the Buyer Sub will bear 100% of the expenses and fees of the Arbitration Firm. In all other cases, the Sellers will bear 100% of the expenses and fees of the Arbitration Firm. (iii) If the Arbitration Firm determines that the Stores achieved the Earnout Requirement, then the Buyer shall pay the Earnout Payment (plus accrued interest from the end date of the Earnout Statement pursuant to Section 2.9(dPeriod until paid at the rate of 8% per annum) or promptly after such determination and in any event within ten Business Days after receipt of wire transfer instructions from the Seller Representative (y) ten (10) days following but not less than two Business Days after the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(eArbitration Firm’s determination). The Earnout Payment Any such payment shall be paid made by wire transfer of immediately available funds pursuant to wire transfer instructions provided by the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid. (b) The amount of the Earnout Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared Sellers in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9such instructions. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiter. (h) After delivery of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privileged.

Earnout. (a) As part of After the Purchase PriceClosing, subject to the terms and conditions set forth in this Section 2.7, the Shareholders shall have the contingent right to receive, and Buyer shall pay or cause to be paid paid, cash payments upon the achievement of certain milestone events (each, a “Milestone, and together, the “Milestones” and each such payment, a “Milestone Payment” and together, the “Milestone Payments”) in each case as set forth on Schedule I hereto; provided, however, that in no event shall Buyer be obligated to pay an aggregate amount of Milestone Payments exceeding $485,000,000.00; provided, further, that no more than one (1) Milestone Payment shall be payable in respect of each Milestone. Notwithstanding the foregoing, in no event shall Buyer be obligated to make a Milestone Payment in respect of a Milestone that is achieved after (i) for Milestones 1 through 6 (as set forth on Schedule I), the date that is the 7th anniversary of the Closing or (ii) for Milestones 7 through 10 (as set forth on Schedule I), the date that is the 11th anniversary of the Closing (each date set forth (i) and (ii), a “Milestone End Date”). (b) Upon the occurrence of any Milestone (and in no event later than forty-five (45) days following each such occurrence), Buyer shall provide written notice to the Seller the Earnout Amount as determined in accordance with this Section 2.9 Holder Representative (the “Earnout PaymentMilestone Notice”), upon which Milestone Notice shall indicate the later to occur Milestone achieved, the date of such achievement, and the Milestone Payment due on account thereof. Within thirty (x) thirty-one (3130) days after the delivery by the of such notice, Buyer Sub will pay to each Shareholder such Shareholder’s Milestone Pro Rata Portion of the Earnout Statement pursuant applicable Milestone Payment, rounded down to Section 2.9(d) or (y) the nearest cent, as set forth on a schedule which Holder Representative shall provide to Buyer in writing at least ten (10) days following prior to such payment becoming due. Buyer shall pay interest on any Milestone Payments set forth in the resolution Milestone Notice that are not paid on or before the date that is 30 days after such payments are due under this Section 2.7 at a rate of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e)ten percent (10%) per annum, calculated based on the days payment is delinquent. The Earnout Payment Milestone Payments to be made by or on behalf of Buyer pursuant to this Section 2.7 shall be made in U.S. dollars paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid. (b) The amount of the Earnout Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million)funds. (c) Within ninety From and after the Closing until the earlier of the seventh anniversary of the Closing and a Reversion, Buyer shall use, and shall cause the Buyer Parties to use, Commercially Reasonable Efforts to achieve Milestones 1-4. From and after the Closing until the earliest of (90i) days following each the seventh anniversary of December 31the Closing, 2012 if the EryDex NDA has not been approved by the FDA by such time, (ii) the 11th anniversary of the Closing, and December 31(iii) a Reversion, 2013Buyer shall use, and shall cause the Buyer Parties to use, Commercially Reasonable Efforts to achieve Milestone 5. Without limiting the foregoing, from and after the Closing until the earlier of (x) the seventh anniversary of the Closing, if the EryDex NDA has not been approved by the FDA by such time and (y) the last Milestone End Date, the Buyer Sub shall prepare not, and deliver shall cause the Buyer Parties not to, take any action with the primary intent of not achieving any Milestone or not paying any Milestone Payment. For the purposes of this Section 2.7(c)(ii), “Commercially Reasonable Efforts” means, with respect to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall efforts to be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified expended by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice Parties with respect to the Seller Representative (eachapplicable Milestones, good faith efforts and reasonable use of resources to accomplish any such Milestone as is commonly dedicated in the pharmaceutical industry by a similarly situated biopharmaceutical company for a product of similar commercial potential at a similar stage of development to the EryDex Product, in each case taking into account issues of safety and efficacy, product profile, the proprietary position, the then current competitive environment and the likely timing of market entry, the regulatory environment and status of such product, and other relevant scientific, technical and commercial factors, but without regard to whether such actions may have an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected impact on the Earnout Statement within 30 calendar days after receipt ability of the Earnout Statement. Any item on the Earnout Statement Shareholders to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will receive any Milestone Payments that may be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Partiesowed or become payable under this Agreement. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiter. (h) After delivery of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privileged.

Earnout. (a) As part additional consideration for the purchase of the Purchase PriceShares, Buyer shall make payments to Sellers based on the Pro Forma Gross Profit, calculated in accordance with Schedule 2.6 (each such payment, an “Earnout Payment” and collectively, the “Earnout Payments”), in the amount, if any, and in the manner as may be determined to be payable pursuant to this Section 2.6 during the following periods (each such period, an “Earnout Period”): (i) the 12-months ending December 31, 2020 and (ii) the 12-months ending December 31, 2021. (b) As promptly as practicable, but in any event within 60 days after the end of each Earnout Period, Buyer shall pay or cause to be paid prepare and deliver to the Seller Sellers’ Representative a statement (the “Preliminary Earnout Amount as determined Statement”) setting forth in reasonable detail Buyer’s good faith calculation of the Pro Forma Gross Profit and the applicable Earnout Payment owed to Sellers for such Earnout Period, together with reasonable supporting detail and documentation. The Preliminary Earnout Statement will be prepared in good faith by Buyer based on the calculations set forth on Schedule 1.1(d) and Schedule 2.6, in accordance with this Section 2.9 Agreement. (c) Within five Business Days after Buyer and the “Earnout Payment”), upon the later to occur of (x) thirty-one (31) days after the delivery by the Buyer Sub of Sellers’ Representative determine that the Earnout Statement Payment amount is final pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e2.6(d). The , Buyer shall pay such Earnout Payment shall be paid to Sellers’ Representative by wire transfer of immediately available funds pursuant to wire transfer instructions provided a bank designated by him. Each Seller will receive from the Seller to the Buyer Parent at least two Business Days prior to the date the Sellers’ Representative such Seller’s Percentage Interest of such Earnout Payment is required to be paid. (b) The amount of the Earnout Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9Payment. (d) Within ninety (90) The Sellers’ Representative may, within 30 days after December 31the date of receipt each Preliminary Earnout Statement, 2014deliver to Buyer a notice setting forth in reasonable detail with supporting documentation any objections that Sellers, in good faith, may have thereto (such notice, a “Earnout Objection Notice”). If the Sellers’ Representative does not so object within such time period, the calculation of the Pro Forma Gross Profit and the Earnout Payment set forth in such Preliminary Earnout Statement will be final and binding on the parties for purposes of this Agreement. If the Sellers’ Representative so objects in good faith and delivers an Earnout Objection Notice within such time period, then he and Buyer Sub shall prepare and deliver will use good faith efforts to resolve by written agreement any differences as to the calculation of Pro Forma Gross Profit and, if he and Buyer Parent so resolve any such differences, the Pro Forma Gross Profit, as adjusted by the agreed adjustments, will be final and binding on the parties for purposes of this Agreement. If any objections raised by the Sellers’ Representative are not resolved by written agreement of the parties within 15 Business Days after he advises Buyer of Sellers’ objections, then he, on behalf of Sellers, and Buyer, will submit the objections that are then unresolved to the Independent Accountants, which shall be directed to resolve the unresolved objections as promptly as reasonably practicable and to deliver written notice to each of Buyer and the Seller Sellers’ Representative a statement (the “Earnout Statement”) setting forth its good faith resolution of the disputed matters. All determinations by the Independent Accountants will be based solely on the information presented to it by Buyer or the Sellers’ Representative and their respective representatives, and not by independent review. In resolving any disputed item, the Independent Accountants will be bound by the terms of this Agreement, including the definition of Pro Forma Gross Profit, and will not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The calculation of Pro Forma Gross Profit and the Earnout Payment, after giving effect to any agreed adjustments and the resolution of any disputed matters by the Independent Accountants, will be final and binding on the parties for purposes of this Agreement. If any unresolved objections are submitted to the Independent Accountants for resolution as provided above, Buyer, on the one hand, and Sellers, on the other hand, will share the fees and expenses of such accounting firm in proportion to the degree to which the applicable final Earnout Payment, as determined by the Independent Accountants, differs from the applicable proposed final Earnout Payment set forth in the Preliminary Earnout Statement submitted by Buyer and the Earnout Objection Notice submitted by the Sellers’ Representative, respectively, such that the Party whose calculation of the EBITDA and applicable Earnout Payment differs more from the North American Excess for calculation submitted by the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years Independent Accountants shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements pay proportionately more of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) costs and expenses of the Buyer SubIndependent Accountants. (e) The Seller During the period set forth in Section 2.6(d), the Sellers’ Representative must give written and his representatives (i) will be permitted to review, during normal business hours and upon reasonable notice and with Buyer’s cooperation, the Company’s Books and Records to the extent related to the preparation of the Preliminary Earnout Statement, including any work papers and memoranda which have been provided to Buyer Parentor the Company, and (ii) will be given access, during normal business hours and upon reasonable notice, to knowledgeable Employees and accounting professionals of the Company and Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail extent reasonably necessary to facilitate the Seller Sellers’ Representative’s or review of the Buyer Parent’s objections, as the case may bePreliminary Earnout Statement, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted extent reasonably requested by the Seller Sellers’ Representative; provided, notwithstanding anything to the contrary in this Agreement, Buyer shall not be required to disclose any information to the Sellers’ Representative and the Buyer Parent; and or his representatives if such disclosure would be reasonably likely to (x) jeopardize any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30attorney-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Partiesclient or other legal privilege or (y) contravene any Applicable Law or any confidentiality agreement. (f) If Except as otherwise provided in this Section 2.6, Sellers acknowledge, understand and agree that (i) Buyer shall have the Seller Representative gives right to operate the Company and the Business in the sole discretion of Buyer Parent, or and make all decisions with respect to the Buyer Parent gives Company and the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt Business in its sole discretion; (ii) the amount of the Earnout Statement, then Payments contemplated herein is speculative and is subject to numerous factors outside the control of Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning Company; (iii) neither Buyer nor the Company has promised or projected payment of the Earnout Statement for Payments; (iv) neither Buyer nor the 20 calendar days after receipt Company owe a fiduciary duty or express or implied duty to Sellers; (v) the contingent right of any Sellers to receive Earnout Statement Objection NoticePayments is not an investment in Buyer or the Company, and the contingent right shall not entitle Sellers to any such items rights as shareholders of Buyer or the Company; (vi) the parties solely intend the express provisions of this Agreement to govern all of their rights and obligations, if any, with respect to the Earnout Payments contemplated pursuant to this Section 2.6; and (vii) nothing herein will prohibit Buyer or the Company from engaging in any amounts included within such items) resolved during such negotiations will be finalbusiness or opportunity or acquiring, binding and conclusive on entering into joint ventures, investing in or otherwise cooperating with other Persons, including Persons that may have interests adverse to or otherwise compete, directly or indirectly, with the PartiesBusiness. (g) If Except (i) as expressly required by the Buyer Parent terms of this Agreement, (ii) as may be reasonably required to comply with Applicable Law, or (iii) as otherwise consented to in writing by the Sellers’ Representative, from the Closing, through the Earnout Period, and, solely with respect to subpart (A) and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in Section 2.9(f(C), then until the Earnout Payment (if earned) is paid in full, Buyer Parent shall (A) not contractually restrict the Company’s ability to pay the Earnout Payment when due, (B) maintain the Company (or its successor) or its Business (as it may be expanded after Closing) as a separate entity or business unit and maintain separate financial records solely for purposes of calculating the Seller Representative will submit only those items remaining in dispute Earnout Payments for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative willBusiness (as it may be expanded after Closing), and will (C) not (1) take or omit to take, or cause their respective accountants tothe Company to take or omit to take, cooperate fully with any action solely intended to impede or impair the Appointed Arbiter payment of any Earnout Payment under Section 2.6, or (2) take, or cause the Company to facilitate its resolution of the disputetake, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statementany other actions, the Earnout Statement Objection Notice and their interpretation sole purpose of the dispute. The Appointed Arbiter will determine and report which is to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical reduce or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiter. (h) After delivery prevent payment of the Earnout Statement, Payments. This Section 2.6 will survive the Closing and will bind any successors or assigns of Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privilegedCompany.

Earnout. Following the Closing Date, the Shareholders and the Non-Party Shareholders shall be eligible to receive Deferred Cash Consideration and Deferred Stock Consideration (collectively, the “Deferred Consideration”), payable in up to four payments (each an “Earnout Payment” and collectively the “Earnout Payments”) based on the Aggregate First Twelve Calendar Quarters Pre-Tax Earnings. Such Deferred Consideration, if any, shall be calculated as indicated below based upon the earnings target reached as set forth below: (a) As part of If the Purchase PriceAggregate First Twelve Calendar Quarters Pre-Tax Earnings is less than $10,000,000, the Buyer then no Deferred Consideration shall pay or cause to be paid payable to the Seller the Earnout Amount as determined in accordance with this Section 2.9 (the “Earnout Payment”), upon the later to occur of (x) thirty-one (31) days after the delivery by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The shareholders and no Earnout Payment shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by Shareholders and the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid.Non-Party Shareholders; (b) The At such time as the Aggregate First Twelve Calendar Quarters Pre-Tax Earnings is equal to at least $10,000,000, then Deferred Consideration in the amount of $2,850,000 shall be payable to the Shareholders and the Non-Party Shareholders and the first Earnout Payment (the “First Earnout AmountPayment”) shall be equal paid to the greater Shareholders and the Non-Party Shareholders. The First Earnout Payment shall be paid as follows: (i) $1,350,000 of (1) the product of (x) 2.26 times (y) the Average North American ExcessDeferred Cash Consideration, and (2ii) Deferred Stock Consideration of THK Common Stock having an aggregate value of $0. For example1,500,000, if such stock to be valued at the Average North American Excess is $25.0 million, average closing price per share of THK Common Stock on the last thirty (30) trading days prior to the end of the last calendar quarter prior to such Earnout Amount would be $56.5 million (2.26 x $25.0 million).Payment; (c) Within ninety (90) days following each At such time as the Aggregate First Twelve Calendar Quarters Pre-Tax Earnings is equal to at least $15,000,000, then Deferred Consideration in the amount of December 31, 2012 and December 31, 2013, the Buyer Sub $5,700,000 shall prepare and deliver be payable to the Buyer Parent Shareholders and the Seller Representative a statement reflecting its good faith calculations Non-Party Shareholders and the second Earnout Payment (the “Second Earnout Payment”) shall be paid to the Shareholders and the Non-Party Shareholders. The Second Earnout Payment shall be paid as follows: (i) $2,700,000 of Deferred Cash Consideration, and (ii) Deferred Stock Consideration of THK Common Stock having an aggregate value of $3,000,000, such stock to be valued at the average closing price per share of THK Common Stock on the last thirty (30) trading days prior to the end of the EBITDA and the North American Excess for the preceding last calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure quarter prior to do so shall not prejudice the rights of any Party pursuant to this Section 2.9.such Earnout Payment; (d) Within ninety (90) days after December 31At such time as the Aggregate First Twelve Calendar Quarters Pre-Tax Earnings is equal to at least $20,000,000, 2014, then Deferred Consideration in the Buyer Sub amount of $5,700,000 shall prepare and deliver be payable to the Buyer Parent Shareholders and the Seller Representative a statement Non-Party Shareholders and the third Earnout Payment (the “Third Earnout StatementPayment”) setting forth its good faith calculation shall be paid to the Shareholders and the Non-Party Shareholders. The Third Earnout Payment shall be paid as follows: (i) $2,700,000 of Deferred Cash Consideration, and (ii) Deferred Stock Consideration of THK Common Stock having an aggregate value of $3,000,000, such stock to be valued at the average closing price per share of THK Common Stock on the last thirty (30) trading days prior to the end of the EBITDA and the North American Excess for the 2012, 2013 and 2014 last calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the quarter prior to such Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub.Payment; (e) The Seller Representative must give written notice At such time as the Aggregate First Twelve Calendar Quarters Pre-Tax Earnings is equal to at least $25,000,000, then Deferred Consideration in the amount of $5,700,000 shall be payable to the Buyer ParentShareholders and the Non-Party Shareholders and the fourth Earnout Payment (the “Fourth Earnout Payment”) shall be paid to the Shareholders and the Non-Party Shareholders. The Fourth Earnout Payment shall be paid as follows: (i) $2,700,000 of Deferred Cash Consideration, and (ii) Deferred Stock Consideration of THK Common Stock having an aggregate value of $3,000,000, such stock to be valued at the Buyer Parent must give written notice average closing price per share of THK Common Stock on the last thirty (30) trading days prior to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt end of the last calendar quarter prior to such Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the PartiesPayment. (f) If In no event shall the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt aggregate amount of the Deferred Consideration exceed Nineteen Million Nine Hundred Fifty Thousand Dollars ($19,950,000). If more than one of clauses (b), (c), (d) and (e) above are satisfied as of the end of the same calendar quarter, the Earnout Statement, then Payments for each such threshold shall be due and payable at the Buyer Parent same time. If it is determined that the Shareholders and the Seller Representative will negotiate in good faith Non-Party Shareholders are entitled to resolve Deferred Consideration for any disputed items concerning completed calendar quarter, THK shall be irrevocably obligated to make the related Earnout Statement Payment, even if the Aggregate First Twelve Calendar Quarters Pre-Tax Earnings for calendar quarters ending after such calendar quarter falls below the applicable threshold triggering such Deferred Consideration for the 20 prior calendar days after receipt quarter. In no event shall any shareholder or Non-Party Shareholder be obligated to return, repay, waive or rescind any Deferred Consideration which THK is obligated to pay under any circumstances, including a subsequent decline in the Aggregate First Twelve Calendar Quarter Pre-Tax Earnings below the applicable threshold triggering such Deferred Consideration at the end of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the PartiesSubsequent Calendar Quarter. (g) If Notwithstanding any provision to the Buyer Parent contrary in this Agreement, THK, in its sole discretion, shall be permitted to pay to the Shareholders and the Seller Representative are unable Non-Party Shareholders any portion of the Deferred Stock Consideration that is required to resolve all disputed items within be paid hereunder in cash in lieu of shares of THK Common Stock to the extent that such portion of the Deferred Stock Consideration would cause the total Stock Consideration to be paid by THK pursuant to this Agreement to exceed 20-day period % of the shares of THK Common Stock issued and outstanding immediately prior to the Effective Time. THK covenants and agrees that it will seek approval from its shareholders for the issuance of the Deferred Stock Consideration to the extent it does or will exceed 20% of the outstanding shares of THK Common Stock at the next annual or special meeting of its shareholders held after the annual meeting scheduled for March 14, 2006 or any postponements or adjournments thereof. The rights set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution first sentence of the dispute, including by providing and explaining as requested the information, data and work papers used by this paragraph (g) shall terminate if such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute shareholder approval is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiterobtained. (h) After delivery of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privileged.

Earnout. (a) As part The Buyer shall prepare and deliver the Earnout Statement to the Representative no later than the Earnout Statement Date. (b) On or prior to the thirtieth (30th) day following the Buyer’s delivery of the Purchase PriceEarnout Statement, the Representative may give the Buyer an Objection Notice. Any Objection Notice shall specify in reasonable detail the dollar amount of any objection and the basis therefor. Any determination set forth on the Earnout Statement which is not specifically objected to in the Objection Notice shall be deemed acceptable and shall be final and binding upon the parties upon delivery of the Objection Notice. If the Representative does not give the Buyer an Objection Notice within such 30-day period, then the Earnout Statement will be conclusive and binding upon the parties and the calculation of the Earnout Payment, if any, set forth in the Earnout Statement will be final and binding upon the parties for purposes of calculating the Earnout Payment under this Agreement. During such 30-day period, the Buyer shall pay provide the Representative with reasonable access to the relevant Books and Records and the Group’s accounting personnel during normal business hours and upon reasonable notice. (c) Following the Buyer’s receipt of any Objection Notice, the Buyer and the Representative shall negotiate in good faith to resolve such dispute. In the event that the Representative and the Buyer fail to agree on any of the Representative’s objections set forth in the Objection Notice within 30 days after the Buyer receives the Objection Notice, the Representative and the Buyer shall engage the Independent Auditor to resolve any items remaining in dispute (the “EO Disputed Items”). The Independent Auditor shall within the 30-day period immediately following referral of the Earnout Statement to the Independent Auditor, make the final determination of the EO Disputed Items and the resulting Earnout Payment in accordance with the terms of this Agreement. The Buyer and the Representative each shall provide the Independent Auditor with their respective determinations of the EO Disputed Items and the resulting Earnout Payment; provided, that such determinations may not differ to the detriment of the other party from the Earnout Statement delivered pursuant to Section 2.4(a) or cause the Objection Notice, as applicable. The Independent Auditor shall make an independent determination of the EO Disputed Items and resulting Earnout Payment that, assuming compliance with the previous clause, shall be within the range proposed by the Buyer and the Representative, respectively, and shall be final and binding on the Sellers, the Representative and the Buyer if such independent determination is within the range proposed by the Buyer; provided that the Independent Auditor shall in no event modify any components or calculations of the Earnout Statement that are not EO Disputed Items. The fees, costs and expenses of the Independent Auditor shall be paid by the party whose Earnout Payment was different by the greater amount from that of the Independent Auditor. (d) Promptly after the Earnout Payment is determined and becomes final and binding on the parties under this Section 2.4, the Purchase Price shall be recalculated by giving effect to such final and binding determinations. If an Earnout Payment is due to be paid to the Seller Sellers then the Buyer and the Representative shall cause the Earnout Amount as determined in accordance with this Section 2.9 (the “Earnout Payment”), upon the later Escrow Agent to occur of (x) thirty-one (31) days after the delivery by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be paid pay by wire transfer of immediately available funds pursuant to the Representative from the Earnout Escrow Amount within two (2) Business Days following the Settlement Date, an amount equal to the Earnout Payment up to the Earnout Escrow Amount. If the Earnout Escrow Amount is less than the Earnout Payment then the Buyer shall pay by wire transfer instructions provided by of immediately available funds to the Seller Representative the amount of such excess within two (2) Business Days following the Settlement Date. If the Earnout Escrow Amount is greater than the Earnout Payment then any remaining balance of the Earnout Escrow Amount shall be released to the Buyer Parent at least two Business Days prior pursuant to the date Earnout Escrow Agreement and the Representative shall join Buyer in instructing the Earnout Payment is required Escrow Agent to be paid. (b) The amount of pay any such remaining balance to Buyer from the Earnout Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and Escrow Amount within two (2) $0. For example, if Business Days following the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer SubSettlement Date. (e) The Seller Representative must give written notice Buyer shall make reasonably available to the Buyer Parent, Independent Auditor all relevant Books and the Buyer Parent must give written notice Records relating to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objectionsGroup, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted reasonably requested by the Seller Representative Independent Auditor and shall use commercially reasonable efforts to cooperate with the Buyer Parent; and Independent Auditor in resolving any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Partiesdisputed matters. (f) If The parties agree that, from and after the Seller Representative gives Closing, the Buyer Parent, or provisions of this Section 2.4 and the Buyer Parent gives arbitration and the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt arbitration provisions contemplated in this Section 2.4 shall be the exclusive remedy and exclusive forum of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith parties with respect to resolve any disputed items concerning the Earnout Statement for Payment contemplated in this Section 2.4, provided, however, that if a party fails to timely pay any sums required to be paid by it pursuant to this Section 2.4 the 20 calendar days after receipt dispute resolution provisions of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the PartiesArticle 9 of this Agreement shall apply. (g) If After the Closing and through December 31, 2015, the Buyer Parent shall cause the Group to be operated as a stand-alone business with unaudited consolidated financial statements of the Group being prepared in accordance with GAAP and consistent with Schedule IV on a stand-alone basis and on a basis consistent with the prior practices of the Group and shall not take any action with respect to the Group that would be reasonably likely to result in EBITDA to be calculated on a basis other that as is consistent with prior practices. Specifically, the following items will not be taken into account in the calculation of EBITDA: (i) all general administrative overhead costs, expenses or charges incurred by the Buyer that are not in connection with the operations or business of the Group, including all (1) fees of the Buyer arising in connection with the transactions contemplated by this Agreement, management fees or similar fees or other corporate charges and (2) costs, expenses and charges related to (x) employees providing joint or shared services to the Group and the Seller Representative Buyer or any of the Buyer’s Affiliates, (y) space or facilities shared or jointly used by the Group and the Buyer or any of the Buyer’s Affiliates and (z) the cost to the Buyer to fund its portion of the cost of the “tail” insurance policy referenced in Section 8.2(b)(ii) hereof; provided, that, (A) specific administrative, operating and other costs, expenses and charges that are unable for the benefit of the Group that are directly incurred by the Group or otherwise paid by the Buyer (or an Affiliate of the Buyer) and allocated to resolve all disputed items within the 20-day period Group shall be taken into account on a pro rata basis between the Group and the Buyer and (B) costs for billable technicians of the Buyer may be charged to the Group at cost only for such time that is actually billable by the Group to the Group’s customer and shall be taken into account in the calculation of EBITDA subject to any other applicable exclusions or adjustments set forth in Section 2.9(f)herein; (ii) all non-cash expenses, then charges, losses or other liabilities related to (1) the Buyer Parent and write-down or write-off of any intangible asset of the Seller Representative will submit only those items remaining in dispute for resolution Group as a result of the impairment thereof; (2) non-cash compensation expenses that arise solely as a result of the Buyer’s or its Affiliates’ compensation policies implemented with respect to the Appointed Arbiter. The Buyer Parent and Group after the Seller Representative willClosing, and will cause their respective accountants to(3) purchase accounting adjustments; (iii) all non-cash income related to the release or reversal of any reserves that existed on the Balance Sheet as at December 31, cooperate fully 2014; (iv) expenses, charges or other losses (i) incurred in connection with the Appointed Arbiter to facilitate its resolution preparation and completion of the dispute, including by providing Working Capital Adjustment and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice or arbitration, litigation, other dispute resolution or other costs arising out of disputes relating to this Agreement or (ii) for which the Buyer or any of its Subsidiaries (including the Group) have received insurance recovery; (v) all income and their interpretation of the dispute. The Appointed Arbiter will determine and report expenses related to the Buyer Parent Settled Matter; (vi) all transaction or exit bonuses, option expenses and other costs and fees paid at the Seller Representative its determination on Closing by the remaining disputed items submitted for resolution Group; (and only such remaining disputed items submitted for resolutionvii) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, all incremental costs and expenses of the Appointed Arbiter.Group or the Buyer incurred by reason of the Buyer’s being a subsidiary of a publicly traded company, including any fees paid to accountants, auditors and lawyers, necessary for the Buyer to cause the Group to comply with the rules and standards of the Public Company Accounting Oversight Board and other Laws and exchange requirements relating to being publicly traded company; (hviii) After delivery any extraordinary gain or loss, including (without limitation) any gain or loss from any sale, exchange, or other disposition of assets (tangible or intangible) outside of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to ordinary course of the business of the Buyer SubGroup; or (ix) any decrease in profitability of the Group resulting from such actions as increases in employee compensation or benefits, the Buyer Parent increases in personnel, purchases or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). Howeverrental of assets, in no event will any Party be required to provide access toeach case not in the Ordinary Course of Business, write-offs and customer discounts not in the Ordinary Course of Business, delays in collections from customers not in the Ordinary Course of Business or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privilegedsimilar changes from the Ordinary Course of Business.

Earnout. (a) As part of In addition to the Purchase Price, Seller shall also be eligible to receive the Buyer Earnout Payment, if any. The value of the Earnout Payment, if any, shall pay or cause be (a) payable one-half in the form of Notes (with an issuance price for the Notes to be paid Seller equal to the principal amount of such Notes) and one-half in the form of Preferred Units and Class A Units (in the same proportion and at the same issuance price as issued to Seller pursuant to the Earnout Amount as determined in accordance with this Section 2.9 Contribution Agreement) and (the “Earnout Payment”), upon the later to occur of (xb) thirty-one (31) made within 30 days after the delivery by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paidFinal Determination Date. (b) Buyer and Seller shall agree on the final determination of the amount of the Earnout Payment, if any, within 90 days after the Earnout Date and if Buyer and Seller are unable to agree upon the amount of the EBITDA used for the calculation of the Earnout Payment within such period, they shall submit such matter to be resolved by the Accountant Arbitrator (the date such final determination of the Earnout Payment is agreed upon by Buyer and Seller or determined by the Accountant Arbitrator, the “Final Determination Date”) in accordance with the dispute resolution procedures set forth in Section 2.3(d). If the Earnout Payment as finally determined pursuant to this Section 2.3(b) is less than $1,500,000, then, prior to the fifteenth (15th) day following the Final Determination Date, Seller may give notice to Buyer to postpone the Earnout Date such that the Earnout Date will be the end of the month ending immediately prior to the thirtieth (30th) month anniversary of the Closing Date and such postponed Earnout Payment, if any, shall be calculated as though the Earnout Date were such delayed date and shall be payable on the same terms and conditions as the original Earnout Payment. (c) Any related party transactions relating to the Earnout Projects shall be entered into for a bona fide business purpose on terms and conditions that each of the boards of directors of Buyer and the Company reasonably concludes to be on terms and conditions as though such transactions were on an arms-length basis. (d) If Buyer and Seller are unable to agree on the final determination of the amount of the EBITDA used for the calculation of the Earnout Payment within 90 days after the Earnout Date, then Buyer and Seller shall (i) jointly select an accounting firm from among the four (4) largest accounting firms in the United States in terms of gross revenues or other nationally recognized (in the United States) accounting firm if the four largest firms are conflicted (the “Accountant Arbitrator”), which shall be required to act through independent members of its designated dispute resolution group who are not subject to any conflict of interest and (ii) each submit their calculation of the EBITDA used for the calculation of the Earnout Payment, along with supporting calculations and evidence thereof that such Party deems appropriate. The Accountant Arbitrator shall be instructed (x) to determine the amount of the Earnout Payment (based on the “Earnout Amount”) shall be equal submissions of Buyer and Seller submitted to the greater of (1) the product of (x) 2.26 times Accountant Arbitrator, (y) that it is only to consider matters still in dispute between Buyer and Seller based solely on such written submissions by Seller, on the Average North American Excessone hand, and Buyer, on the other hand, and their respective representatives and a voluntary rebuttal submission by each party, and shall not be by independent review and (2z) $0to make its determinations based upon the accounting methods and practices specified in this Agreement. For exampleAll determinations by the Accountant Arbitrator shall be final and binding upon the Parties for purposes of this Agreement, if the Average North American Excess is $25.0 millionabsent fraud. The Party (i.e., the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (cBuyer or Seller) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver whose asserted position as to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations amount of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements final determination of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on Payment is farthest from the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations determination of the amounts on Accountant Arbitrator, shall pay the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs fees and expenses of the Appointed Arbiter. Accountant Arbitrator (h) After delivery and reimburse the other party for any fees and expenses of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption such party advanced to the business Accountant Arbitrator in respect of the Buyer Subsuch matter, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicableif any). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privileged.

Earnout. As additional consideration for the transactions set forth herein: (a) As part If, on the later of (i) July 30, 2007 or (ii) the date on which Purchaser exercises the option granted to it by Seller pursuant to the Option Agreement, the Minimum Revenue Trigger has been achieved, Purchaser shall issue shares of Common Stock to Seller no later than ten (10) Business Days after Purchaser's receipt of confirmation that Seller accepts the Revenue Trigger Report, subject to the resolution of any dispute pursuant to Section 2.7(c) (the "Earnout Payment Date"), the Earnout Amount. Notwithstanding the foregoing, no fractional shares of Common Stock shall be issued in conjunction with any payment by Purchaser to Seller of the Purchase PriceEarnout Amount. In lieu of any fractional share to which Seller would otherwise be entitled, the Buyer Purchaser shall pay or cause to be paid cash equal to the Seller product of such fraction multiplied by the Earnout Amount price per share of Common Stock based on the ninety- (90) day prior average price of the Common Stock as of April 1, 2007. (b) Whether the Minimum Revenue Trigger has been achieved, and the Annualized First Quarter Revenue, shall be determined in accordance with this Section 2.9 by Purchaser within (the “Earnout Payment”), upon the later to occur of i) thirty (x) thirty-one (3130) days after the delivery by the Buyer Sub close of the Earnout Statement second quarter of 2007 or (ii) the date on which Purchaser exercises the option granted to it by Seller pursuant to Section 2.9(dthe Option Agreement, whichever is later. Copies of Purchaser's report (the "Revenue Trigger Report") setting forth Purchaser's determination of whether the Minimum Revenue Trigger has been achieved, and the Annualized First Quarter Revenue, shall be submitted by Purchaser in writing to Seller and, unless Seller notifies Purchaser within thirty (30) Business Days after receipt of such Revenue Trigger Report that it objects to the computations set forth therein, such Revenue Trigger Report shall be binding and conclusive for the purposes of this Agreement. Following delivery to Seller of the Revenue Trigger Report, Purchaser shall give Seller and its accountants reasonable access to Purchaser's personnel as well as any books, records, work-papers, documents, and reports created or prepared by Purchaser in connection with the determination of the Minimum Revenue Trigger and the Annualized First Quarter Revenue and the preparation of the corresponding Revenue Trigger Report on reasonable prior notice during regular business hours in order to verify the computations set forth therein. (yc) If Seller disagrees with the computations set forth in the Revenue Trigger Report, Seller may, within thirty (30) days after delivery of the Revenue Trigger Report, deliver a notice to Purchaser disagreeing with such computation and the basis for its disagreement, and thereafter the parties shall in good faith attempt to resolve any dispute, in which event the Revenue Trigger Report and the computations set forth therein, as amended to the extent necessary to reflect the resolution of the dispute, shall be conclusive and binding on the parties. If the parties do not reach agreement resolving the dispute within ten (10) days following after notice is given by Seller, the parties shall submit the dispute to the Accountant to review this Agreement and the disputed items or amounts for the purpose of making the appropriate calculations (it being understood that the Accountant shall be functioning as an expert and not as an arbitrator). Promptly, but no later than thirty (30) days, the Accountant shall determine, based solely on written submissions by Purchaser and Seller, and not by independent review, only those issues in dispute and shall render a written report as to the resolution of all the dispute and the resulting computations which shall be conclusive and binding on the parties. The Accountant shall have access to such books, records, work-papers and personnel as it shall request. In resolving any disputed matters properly included in an Earnout Statement Objection Notice in accordance with item, the Accountant shall be bound by the provisions of this Section 2.9(e2.7(c). The Earnout Payment shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid. (b) The amount of the Earnout Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiter. (h) After delivery of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) Accountant (i) to shall be borne by Purchaser if the books and records in their possession Accountant determines that the Revenue Trigger has been understated by ten percent (10%) percent or under their control containing information directly relevant to more, but only if the Earnout Statement Minimum Revenue Trigger has been met or the Earnout Statement Objection Notice (as applicable) exceeded and (ii) shall be borne by Seller if the Accountant determines that the Revenue Trigger has not been understated or has been understated by less than ten percent (10 %) percent, regardless of whether or not the Minimum Revenue Trigger has been met or exceeded. (d) Any issuance pursuant to Section 2.7(c) shall be made within ten (10) Business Days after the determination thereof to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privilegedapplicable party.

Earnout. (aA) As part (A) Upon the earlier of (A) the Purchase Priceachievement of $10,000,000.00 in Net Revenues during the First Measurement Period, or (B) the Third Anniversary Milestone, the Seller shall be entitled to receive from the Buyer, in immediately available funds using wire transfer instructions as designated in writing by the Seller, an amount equal to $1,000,000.00 (the “First Earnout Payment”). If the First Earnout Payment is earned in accordance with clause (A) above, the First Earnout Payment shall be payable within ten (10) Business Days following such occurrence. If the First Earnout Payment is earned in accordance with clause (B) above, the First Earnout Payment shall be payable within ten (10) Business Days following such occurrence. (B) After the First Earnout Payment is made, the Seller shall be entitled to receive from the Buyer, in immediately available funds using wire transfer instructions as designated in writing by the Seller, an amount equal to $1,000,000.00 (the “Second Earnout Payment”) upon the achievement of $12,500,000.00 in Net Revenues during the Second Measurement Period. (C) After the Second Earnout Payment is made, the Seller shall be entitled to receive from the Buyer, in immediately available funds using wire transfer instructions as designated in writing by the Seller, an amount equal to $1,000,000.00 (the “Third Earnout Payment”) upon the achievement of $15,000,000.00 in Net Revenues during the Third Measurement Period. (D) On or before forty-five (45) days following the end of each Measurement Period, the Buyer shall pay or cause to be paid deliver to the Seller the Earnout Amount as determined in accordance with this Section 2.9 (the “Earnout Payment”), upon the later to occur of (x) thirty-one (31) days after the delivery by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid. (b) The amount a statement of the Earnout Payment due for such Measurement Period (the “Earnout AmountPayment Calculation”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess), and (2) $0. For example, if the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a which statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements supporting documentation including information related to revenue recognition for that Measurement Period based on sales of the North American Business used Theraclear Devices. (E) The Buyer shall make all shipments of Theraclear Devices in calculating EBITDAgood faith in the ordinary course of its business during the Earnout Period, all of which and such shipments shall be certified made pursuant to the Buyer’s standard terms and conditions, including its standard payment terms. (F) The Parties agree to treat any payment of any Earnout Amount as an adjustment to the Purchase Price for all purposes hereunder and all Tax purposes, except as otherwise required by applicable Law. (G) Notwithstanding anything to the Chief Financial Officer contrary contained herein or in any Ancillary Agreement, the right of any Party to receive payment in respect of the Earnout Amount, together with each other right set forth in this Section 2(f)(i), (A) is solely a contractual right and is not a security for purposes of any federal or officer state securities Laws, and (B) shall not be assigned (by operation of equivalent law, merger (whether as surviving or similar positiondisappearing entity), consolidation, dissolution, or otherwise) or otherwise Transferred without the prior written consent of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss Seller, and any such assignment or other Transfer in violation of the calculation of EBITDA foregoing shall be null and void; provided, that, upon advance written notice to the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014Buyer, the Buyer Sub Seller shall prepare have the right to assign and deliver transfer to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth Principals its good faith calculation rights in respect of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and In connection with entering into the North American Excess for the 2012agreements set forth within this Section 2(f), 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (eachacknowledges and agrees that, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative from and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiter. (h) After delivery of the Earnout StatementClosing, the Buyer Sub will provide shall be permitted to operate the Buyer ParentBusiness in its sole and absolute discretion, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption regard to the business effects that such operation of the Buyer Sub, Business may have on the Buyer Parent calculation of the payment made or the Seller (as applicable) (i) to the books and records in their possession or that otherwise may have been made under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicablethis Section 2(f)(i). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privileged.

Earnout. (a) As part of After the Purchase PriceClosing, subject to the terms and conditions set forth herein, the Buyer shall pay or cause to be paid Company Stockholders as of immediately prior to the Seller the Earnout Amount as determined in accordance with this Section 2.9 Closing (the “Earnout PaymentParticipants”)) shall have the contingent right to receive up to an additional Twenty Million (20,000,000) shares of Purchaser Common Stock (subject to equitable adjustment for stock splits, upon stock dividends, combinations, recapitalizations and the later to occur of (x) thirty-one (31) days like after the delivery by the Buyer Sub of the Earnout Statement pursuant Closing, including to Section 2.9(daccount for any equity securities into which such shares are exchanged or converted) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid. (b) The amount of the Earnout Payment (the “Earnout AmountShares”) shall be equal to based on the greater of Company achieving certain sales milestones during (1i) the product of twelve (x12) 2.26 times (y) month period starting with the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 million, the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations first day of the EBITDA and first calendar quarter beginning after the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement Closing Date (the “First Sales Earnout StatementYear”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice and their interpretation of the dispute. The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiter. (h) After delivery of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) the twelve (12) month period beginning immediately after the end of the First Sales Earnout Year (the “Second Sales Earnout Year” and, together with the First Sales Earnout Year, each, a “Sales Earnout Year”) and the performance of the Purchaser Common Stock during the period starting from one-hundred and fifty (150) days after the Closing until December 31, 2024 (the “Price Earnout Period”). The Earnout Participants’ right to receive the Earnout Shares shall vest and become due and issuable as follows: (i) if during the First Sales Earnout Year, (A) sales by the Purchaser and its Subsidiaries (including the Target Companies) of electric automobile vehicles (net of any returns, even if after the end of such Sales Earnout Year, but prior to the employees or other Representatives responsible filing of the Purchaser’s consolidated financial statements with the SEC for preparing the last calendar quarter included in such Sales Earnout Year) to unaffiliated third parties (“Automobile Sales”) are in the aggregate at least four hundred (400) and (B) such Automobile Sales are at an average effective pre-Tax sales price per vehicle (net of any discounts and returns (even if after the end of such Sales Earnout Year, but prior to the filing of the Purchaser’s consolidated financial statements with the SEC for the last calendar quarter included in such Sales Earnout Year)) (“Average Sales Price”) of at least $55,000 (the “First Year Sales Earnout Milestone”), then the Earnout Statement or the Participants shall be entitled to receive Five Million (5,000,000) Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privileged.Shares;

Earnout. (a) As part In addition to the amounts payable to Sellers pursuant to the other provisions of this Agreement, within five (5) days following the determination of the Purchase PriceEarnout Revenue for the Earnout Period, the Buyer shall pay (or cause to be paid paid) the Earnout Amount, if any, to the Seller the Earnout Amount as determined in accordance with this Section 2.9 (the “Earnout Payment”), upon the later to occur of (x) thirty-one (31) days after the delivery by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be paid Sellers by wire transfer of immediately available funds pursuant to Sellers Representative using wire transfer instructions provided designated in writing by the Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paidSellers’ Representative. (b) The amount As promptly as practicable, but in no event later than sixty days after the expiration of the Earnout Period, Buyer shall deliver to Sellers’ Representative Buyer’s calculation of the Earnout Revenue for the Earnout Period, accompanied by reasonable supporting documentation sufficient to enable Sellers’ Representative to verify the calculations contained therein (the “Earnout Payment Statement”). Sellers’ Representative and Sellers agree that such information would be considered material non-public information pursuant to the Securities Laws and that they shall keep such information strictly confidential and shall not transact, either directly or indirectly, in any securities of any Affiliate of Buyer as a result of receipt of the Earnout Payment (the “Earnout Amount”) shall be equal Statement. If Sellers’ Representative notifies Buyer in writing that Sellers’ Representative objects to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 million, amounts set forth within the Earnout Amount would be $56.5 million Statement within forty five (2.26 x $25.0 million). (c) Within ninety (9045) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement Objection Notice”)delivery, specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, nature and extent of any disagreement (as well as the case may be, to any amount reflected on disputed items or amounts in the Earnout Statement within 30 calendar days after receipt of Payment Statement) (the “Earnout Statement. Any item on the Earnout Statement to which the Seller Payment Objection Notice”), Sellers’ Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will shall negotiate in good faith to resolve any disputed items concerning such dispute, with Sellers’ Representative having full access to the books, records, information and personnel of Buyer necessary to verify the amounts set forth within the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the PartiesPayment Statement. (gc) If In the event that Sellers’ Representative and Buyer Parent and the Seller Representative are unable to resolve all Sellers’ Representative’s objections within thirty (30) days of Sellers’ Representative’s delivery of the Earnout Payment Objection Notice, each of Sellers’ Representative and Buyer will provide Xxxx Xxxxx, LLP (or, if Xxxx Xxxxx, LLP is unable or unwilling to serve, another nationally recognized accounting firm not affiliated with Sellers or Buyer that is mutually selected by Sellers’ Representative and Buyer) (the serving accounting firm being the “Independent Accountant”) with a statement of its position, and the Independent Accountant shall make a final determination as to same. The Independent Accountant’s decision as to any disputed items within the 20-day period amount or item set forth in Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, the Earnout Statement Objection Notice shall be within the range of amounts disputed by Buyer and their interpretation Sellers’ Representative and an award binding on and shall be non-appealable by Xxxxx and Sellers’ Representative and enforceable in any court of the disputerecord (absent fraud or manifest error). The Appointed Arbiter will determine and report to the Buyer Parent and the Seller Representative its determination on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs fees and expenses of the Appointed Arbiter. Independent Accountant shall be allocated between Buyer, on the one hand, and the Sellers’ Representative (h) After delivery on behalf of the Earnout StatementSellers), on the Buyer Sub will provide other hand, based upon the Buyer Parent, percentage which the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption dollar amount of the disputed items not awarded to each Party bears to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) to the employees or other Representatives responsible for preparing the Earnout Statement or the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privilegedtotal amount contested by such Party.

Earnout. (a) As part If the Company achieves the Earnout Threshold in any of the Purchase Pricecalendar years ending December 31, the Buyer shall pay 2016, 2017 or cause to be paid to the Seller the Earnout Amount as determined in accordance with this Section 2.9 2018 (the each, an “Earnout PaymentPeriod”), upon then the Sellers shall be entitled to receive the Earnout Payment for such Earnout Period; provided, that the maximum amount of any single Earnout Payment shall be One Million U.S. Dollars ($1,000,000), for a maximum amount of Earnout Payments payable with respect to all Earnout Periods under this Section 1.6 of Three Million U.S. Dollars ($3,000,000). The Earnout Payments, if any, made pursuant to this Section 1.6 will be paid in the proportion set forth on the Consideration Allocation Schedule, and will be made in cash in immediately available funds on or before the later to occur of (xi) thirty-one April 30 of the year immediately following the end of the applicable Earnout Period and (31ii) fifteen (15) days after the delivery date the determination of Net Revenues for the applicable Earnout Period becomes final and binding upon the parties as provided in Sections 1.6(c) and (d) (including any final resolution of any disagreement raised by the Buyer Sub Seller Representative in an Earnout Objection Notice). Notwithstanding the foregoing, if required to pay the obligations of Sellers under Section 10.2(c), up to Six Hundred Thousand U.S. Dollars ($600,000) of the Earnout Statement pursuant Payments, to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment extent any is due and payable, shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided by deducted from the Seller to the Buyer Parent at least two Business Days amounts otherwise due and payable under this Section 1.6 and, if prior to the date release of the Earnout Payment is required Specified Escrow, shall be deposited by Purchaser with the Escrow Agent, to be paidheld in trust with the Escrow Agent pursuant to the Escrow Agreement. (b) The amount On or before April 1 of the year immediately following the end of an Earnout Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is $25.0 millionPeriod, the Earnout Amount would be $56.5 million (2.26 x $25.0 million). (c) Within ninety (90) days following each of December 31, 2012 and December 31, 2013, the Buyer Sub Company shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations setting forth in reasonable detail each of the EBITDA items comprising the Company’s calculation of Net Revenues for such Earnout Period and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance Earnout Payment payable to each Seller with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure respect to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement such Earnout Period (the “Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after Upon receipt of the Earnout Statement, then the Buyer Parent Seller Representative and its authorized representatives will be given reasonable access to inspect and make copies of the Company’s relevant Books and Records during reasonable business hours for the purpose of verifying the Earnout Statement. (c) If the Seller Representative disagrees with the Company’s determination of Net Revenues for the applicable Earnout Period and/or the Earnout Payments as set forth in the Earnout Statement, the Seller Representative may, within thirty (30) days after delivery of the Earnout Statement, deliver to the Company written notice of such disagreement, which notice shall specify the items in the Earnout Statement disputed by the Seller Representative and shall describe in reasonable detail the basis for any such disagreements (the “Earnout Objection Notice”). If the Seller Representative does not deliver an Earnout Objection Notice within such thirty (30) day period, the Company’s determination of Net Revenues for the Earnout Period and the Earnout Payment set forth in the applicable Earnout Statement will be deemed to be final and binding on the Sellers; provided that, in the event the Company does not provide access to any relevant Books and Records reasonably requested by the Seller Representative or any of its authorized representatives within five (5) business days after request for such Books and Records (or such shorter period as may remain in such thirty (30)-day period), such thirty (30)-day period shall be extended by one (1) day for each additional day required for the Company to fully respond to such request. After the Seller Representative has delivered an Earnout Objection Notice in accordance with this Section 1.6(c), the Sellers will not be entitled to raise any additional objections that would result in an increase to the applicable Earnout Payment. (d) If the Seller Representative timely delivers an Earnout Objection Notice to the Company, the Company and the Seller Representative will negotiate in good faith to resolve any the disputed items concerning and agree upon the resulting amount of Net Revenues for the applicable Earnout Period and the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) Payment. If the Buyer Parent Company and the Seller Representative are unable to resolve all disputed items any such disagreements within fifteen (15) days after delivery of the 20-day period set forth in Section 2.9(f)Earnout Objection Notice, then the Buyer Parent Company and the Seller Representative will shall submit the dispute to a Firm. The Firm shall be directed to render a written report on the unresolved disputed items, to resolve only those unresolved disputed items remaining set forth in dispute for resolution the Earnout Objection Notice, and as to each disputed item, select a position that is no more beneficial to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout Statement, Company than that set forth in the Earnout Statement and no more beneficial to the Sellers than that set forth in the Earnout Objection Notice and their interpretation of the disputeNotice. The Appointed Arbiter will determine and report to the Buyer Parent Seller Representative and the Seller Representative its determination Company shall use their respective commercially reasonable efforts to cause the Firm to resolve such dispute as soon as practicable, but in any event within thirty (30) days after the date on the remaining disputed items submitted for resolution (and only such remaining disputed items submitted for resolution) within 15 Business Days after which the dispute is submitted to the Appointed ArbiterFirm. If unresolved disputed items are submitted to the Firm, the Company and the Appointed Arbiter’s determination will be finalSellers shall each furnish to the Firm such work papers, binding schedules and conclusive other documents and information relating to the unresolved disputed items as the Firm may reasonably request. The Firm shall resolve the disputed items based solely on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) applicable definitions and other terms in this Agreement and the presentations by the Company and the Seller ( 1/2) will Representative, and not by independent review. The resolution of such disagreements and the determination by the Firm of Net Revenues for the applicable Earnout Period and the Earnout Payment payable shall be final and binding on the Company and the Sellers and may be entered as a final judgment in any court of competent jurisdiction. The Company and the Sellers shall each bear equally its own costs and expenses in connection with the fees, resolution of such dispute by the Firm. The costs and expenses of the Appointed ArbiterFirm shall be divided between the Company and the Sellers pro rata, in proportion to the degree to which the Net Revenues, as calculated by the Firm, differs from the Net Revenues submitted by the Company in the Earnout Statement and the Net Revenues submitted by the Seller Representative in the Earnout Objection Notice, such that the Party whose calculation differs more from the final determination by the Firm of the Net Revenues for the applicable Earnout Period shall pay proportionately more of the costs and expenses of the Firm. The Firm shall provide to the Company and the Sellers an invoice for its costs and expenses and a calculation of the relative responsibilities of the Company and the Sellers for such costs and expenses, which calculation shall be binding on the Company and the Sellers. (he) After delivery of During the Earnout StatementPeriod, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) Purchaser covenants that it (i) to will operate the books and records Company at all times in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) a commercially reasonable manner and (ii) will not take any action a purpose of which is to adversely affect any Earnout Payment. Subject to the employees foregoing, Sellers acknowledge and agree that Purchaser shall have the right to operate the Company as it deems appropriate and Purchaser shall have no obligation to operate the Company in a manner to maximize any Earnout Payment. (f) The Parties understand and agree that (i) the contingent rights to receive the Earnout Payments shall not be represented by any form of certificate or other Representatives responsible for preparing instrument, are not transferable, 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 or the Company, (ii) the Sellers shall not have any rights as a securityholder of Purchaser or the Company as a result of their contingent right to receive the Earnout Statement or Payments hereunder, and (iii) no interest is payable with respect to the Earnout Statement Objection Notice (as applicable). However, in no event will any Party be required to provide access to, or be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privilegedPayments.

Earnout. As additional consideration for the Interests, Buyer shall pay to Seller the following amounts (individually, an “Earnout Payment” and, collectively, the “Earnout Payments”) if and to the extent due pursuant to this Section 2.05: (a) As part If prior to October 31, 2012 (the “Facility Increase Termination Date”), the Aggregate Commitments under the Buyer Debt Facility (excluding Commitments provided by Seller) equals or exceeds $100 million, whether through the addition of commitments from Persons not a Lender under the Buyer Debt Facility Agreement as of the Purchase PriceClosing Date that are institutional lenders primarily engaged in the business of lending (“Prospective Lender”) or the assignment of Commitments by Seller or the other Lenders to Prospective Lenders (the “Facility Increase”), the then Buyer shall pay pay, or cause to be paid paid, to the Seller the Earnout Amount as determined in accordance with this Section 2.9 (the “Earnout Payment”)an additional $10,820,000, upon the later to occur of (x) thirty-one (31) days after the delivery by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be paid by wire transfer of immediately available funds pursuant to wire transfer instructions provided such bank account as shall be designated in writing by Seller, within fifteen (15) days following the Seller consummation of such Facility Increase. If (I) a Facility Increase has not been consummated on or prior to October 31, 2012, (II) Buyer is in discussions with one or more Prospective Lenders and (III) Buyer’s chief executive officer certifies that he believes in good faith that continued discussions with one or more such Prospective Lenders will lead to Commitments meeting the Buyer Parent at least two Business Days thresholds set forth above on or prior to November 21, 2012, then the Facility Increase Termination Date will be extended to November 21, 2012. If the Facility Increase has not occurred prior to the date Facility Increase Termination Date, no Earnout Payment will be earned or owed under this Section 2.05(a). In connection with the foregoing, Buyer will (or will direct the administrative agent under the Buyer Debt Facility Agreement to) (A) call each of the Prospective Lenders listed on Section 2.05 of the Disclosure Schedules (each, a “Designated Prospective Lender”) and invite them to participate as Lenders in the Buyer Debt Facility under the Buyer Debt Facility Agreement; (B) make senior management of the Acquired Companies reasonably available to meet with any Designated Prospective Lenders; (C) assist the agent in preparing materials/making available materials to be delivered to any Designated Prospective Lenders that indicate interest; and (D) consent to, accept and include any Designated Prospective Lenders as a Lender under the Buyer Debt Facility Agreement. In connection with the foregoing, Buyer will not (1) be required to change the pricing or terms of the Buyer Debt Facility Agreement related to any new Lenders or (2) have any other obligations express or implied except those expressly set forth above with respect to earning the Earnout Payment is required pursuant to be paidthis Section 2.05(a). (b) The amount In the event the conditions set forth in Section 2.05(a) above are not satisfied and no Earnout Payment is due pursuant to Section 2.05(a), then the following provisions of this Section 2.05(b) shall apply: (i) Buyer shall pay to Seller, for each of the Earnout Payment twelve-month periods ended December 31, 2012, 2013, and 2014 (each, a “Measurement Period”), (i) with respect to the Measurement Period ending December 31, 2012, 37.5% of the amount by which Adjusted EBITDA (as defined below) exceeds $33 million during such Measurement Period (as adjusted from time to time pursuant to this Section 2.05(b), the “EBITDA Target”) and (ii) with respect to the Measurement Periods ending December 31, 2013 and December 31, 2014, 75% of the amount by which Adjusted EBITDA for the applicable Measurement Period exceeds $33 million during such Measurement. In no event shall Buyer be required to pay more than $10,820,000 (the “Maximum Earnout Amount”) shall be in the aggregate pursuant to this Section 2.05(b). In the event that Seller receives aggregate payments pursuant to this Section 2.05(b) equal to the greater Maximum Earnout Amount, Buyer’s obligations under this Section 2.05(b) shall terminate and be of no further force and effect. (1ii) Promptly following completion of the product audited financial statements of JCAP Holdings, LLC (xif audited financial statements are prepared) 2.26 times or unaudited financial statements of JCAP Holdings, LLC (yif audited financial statements are not prepared) for the Average North American ExcessMeasurement Period (but in no event later than one hundred and twenty (120) days following the completion of such Measurement Period), Buyer shall deliver to Seller a copy of such financial statements together with a certificate executed by the chief executive officer or chief financial officer of Buyer (or other officer of Buyer with similar duties and responsibilities) certifying the calculation of Adjusted EBITDA for such Measurement Period (each, an “Earnout Certificate”). Each Earnout Payment as set forth in an Earnout Certificate pursuant to this Section 2.05(b) shall be paid, by wire transfer of immediately available funds to such bank account as shall be designated in writing by Seller, within fifteen (15) days following the delivery of the applicable Earnout Certificate. On or prior to the sixtieth (60th) day after Seller’s receipt of such certification setting forth the calculation of Adjusted EBITDA for the applicable Measurement Period, Seller may give Buyer a written notice stating in reasonable detail its objections to the calculation thereof in accordance with the procedures set forth in Section 2.07 below. During such sixty (60) day period following receipt of Buyer’s certification, Seller and its accountants and representatives shall have the right to inspect the books and records of the Measured Persons used to calculate the applicable Earnout Amount during normal business hours at the offices of such Measured Persons, upon reasonable prior notice and for purposes reasonably related to the determination of Adjusted EBITDA and the resulting Earnout Payment. Any disputed amounts to be paid pursuant to Section 2.07 shall be paid within fifteen (15) days following the determination of Adjusted EBITDA for such Measurement Period being deemed final in accordance with such provisions. In the event that Seller does not deliver to Buyer an Objection Notice with respect to the calculation of Adjusted EBITDA for such Measurement Period by the sixtieth (60th) day following Buyer’s delivery of the applicable Earnout Certificate to Seller, the calculation of Adjusted EBITDA for such Measurement Period and the resulting Earnout Payment as set forth in such Earnout Certificate shall be deemed final and binding on Buyer and Seller. (iii) Buyer agrees (A) to maintain separate books and financial statements with respect to the Measured Persons, permitting a full and accurate determination of any Earnout Payment, (B) not to, directly or indirectly, divert any business normally conducted by a Measured Person to any other Person not included within the calculation of Adjusted EBITDA, and (2C) $0. For examplenot to take any action or omission (or allow any Measured Person to take any action with the primary purpose of reducing or decreasing any potential Earnout Payment; provided, if however, that nothing contained in this Agreement shall be construed to restrict in any way Buyer’s management from operating the Average North American Excess is $25.0 million, Buyer’s business (including the Earnout Amount would be $56.5 million (2.26 x $25.0 million)business of the Acquired Companies) in the manner which the Buyer’s management and board of directors deem most beneficial for the Buyer and the holders of Buyer’s membership interests. (civ) Within ninety (90) days following each of December 31Unless otherwise agreed to in writing by Seller and Buyer, 2012 and December 31, 2013, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement reflecting its good faith calculations all financial statements of the Measured Persons for purposes of determining Adjusted EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement the Effective Yield Financial Statements as described in Section 3.06 and, subject to subsection (vi) below, any contribution (whether positive or negative) from operations of the Measured Persons in the United Kingdom (without duplication). The parties agree that any changes in any accounting rules or the effective yield methodology from and GAAP after the date hereof shall not affect the calculation of Adjusted EBITDA and that the parties shall be accompanied by any prepare the financial statements of on a basis consistent with the North American Business determinations used in calculating EBITDA, all of which shall be certified by to prepare the Chief Effective Yield Financial Officer (or officer of equivalent or similar positionStatements and the methodology set forth on Section 3.06(a) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9Disclosure Schedules. (dv) Within ninety In the event that all or substantially all of either the assets or equity of any of the Measured Persons are sold, transferred or otherwise disposed of to an unaffiliated third party in a transaction or series of related transactions (90except for asset sales or dispositions in the ordinary course of business) days after (a “Sale Transaction”) prior to December 31, 20142014 and Flexpoint Fund II, L.P. receives in cash at the consummation of such Sale Transaction (net of any Earnout Payments payable of a result of such Sale Transaction) an amount equal to (A) 1.5 multiplied by (B) Flexpoint Fund II, L.P.’ s aggregate equity investments in JCAP Holdings, LLC and its subsidiaries prior to such date, then, within fifteen (15) days following the consummation of such Sale Transaction, Buyer shall pay to Seller, by wire transfer of immediately available funds to such bank account as shall be designated in writing by Seller, an amount equal to the Maximum Earnout Amount less any Earnout Payments previously paid hereunder. (vi) For purposes of this Section 2.05(b), “Adjusted EBITDA” shall mean, with respect to any specified period, the consolidated net income of JCAP Holdings, LLC, its subsidiaries (including Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement Acquired Companies), and each of their successors (collectively, the “Earnout StatementMeasured Persons”) setting forth its good faith calculation ), for such period, determined before deduction of interest expense, income taxes, depreciation expense and amortization expense of the EBITDA and the North American Excess Measured Persons for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared such period calculated in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. (e) The Seller Representative must give written notice to the Buyer Parent, and the Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement Objection Notice”), specifying in reasonable detail the Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any amounts included within such item will be deemed to be final, binding and conclusive. If the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of the amounts on the Earnout Statement will be final, binding and conclusive on the Parties. (f) If the Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Buyer Parent and the Seller Representative will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period methodology set forth in Section 2.9(f2.05(b)(iv) above and after adding back (to the extent deducted in determining consolidated net income for such period): (A) the fees and expenses incurred by any Measured Person in connection with the closing of the transactions contemplated hereby; (B) all management fees, consultant fees or similar fees paid or payable to Flexpoint Fund II, L.P. or its Affiliates (other than the Measured Persons) or any employee of Flexpoint Fund II, L.P. or its Affiliates (other than an employee of a Measured Person); (C) director’s or similar fees paid to any member of a Measured Person’s board of directors or board of managers, other than normal and customary payments to outside directors or outside members of a Measured Person’s board of directors or board of managers that are consistent with amounts paid by companies of the size and type of the Measured Persons, (D) all fees and expenses incurred by a Measured Person to Flexpoint Fund II, L.P. or any of its Affiliates (other than a Measured Person) on terms that are less favourable to such Measured Person than arms’ length terms (excluding any transactions or arrangements among the Measured Persons), then the Buyer Parent (E) any other extraordinary gains or losses or one-time gains or losses, including gains or losses associated with a Sale Transaction that any Measured Person may pursue, and the Seller Representative will submit only those items remaining in dispute for resolution (F) any purchase accounting or write up of an intangible asset due to the Appointed Arbiteracquisition transactions contemplated by this Agreement. The Buyer Parent and If the Seller Representative will, and will cause their respective accountants to, cooperate fully with the Appointed Arbiter to facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Party to prepare the Earnout StatementAcquired Companies engage in a Material Disposition, the Earnout Statement Objection Notice and their interpretation Adjusted EBITDA will be adjusted to exclude the effect of any gain or loss resulting from such Material Disposition. In the dispute. The Appointed Arbiter will determine and report to the event that any Affiliate of Buyer Parent and the Seller Representative its determination (other than any Measured Person) diverts from any Measured Person any business opportunity of such Measured Person that (x) is within such Measured Person’s line of business on the remaining disputed items submitted for resolution date hereof, (y) is generated by and only such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Appointed Arbiter’s determination will be final, binding and conclusive on the Parties, except to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) and the Seller ( 1/2) will bear equally the fees, costs and expenses of the Appointed Arbiter. (h) After delivery of the Earnout Statement, the Buyer Sub will provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the Buyer Sub, the Buyer Parent or the Seller (as applicable) (i) to the books and records in their possession or under their control containing information directly relevant to the Earnout Statement or the Earnout Statement Objection Notice (as applicable) and (ii) known to the employees or other Representatives responsible for preparing of such Measured Person and (z) such Measured Person has the Earnout Statement or the Earnout Statement Objection Notice (as applicable). Howeverability and practical experience to pursue, in no event will any Party be required to provide access to, or such business opportunity shall be deemed to have waived any privilege with respect to, any books, records or other information that it reasonably believes is privilegedbusiness of such Measured Person for purposes of calculating the Adjusted EBITDA.