Common use of Earnout Clause in Contracts

Earnout. (a) Pursuant to the Merger, there shall be issued to each holder of a share of SpinCo Common Stock and each holder of a SpinCo Equity Award, their pro rata portion, as determined in accordance with the terms of Section 3.1(a) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject to the forfeiture provisions set forth in Section 3.3(d) (the “Earnout Shares”). (b) The Earnout Shares shall be subject to the following vesting conditions: (i) If, at any time during the period commencing on the Closing Date and ending on the date that is five years after the Closing Date (the “Earnout Period”), the Parent Trading Price is greater than or equal to $12.50, 50% of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (ii) If, at any time during the Earnout Period, the Parent Trading Price is greater than or equal to $15.00, the remaining 50% of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (c) For the avoidance of doubt, if the vesting conditions applicable to more than one of the provisions of Section 3.3(b) have been satisfied at any one time, then all of the Earnout Shares subject to such satisfied vesting conditions shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (d) If, upon the expiration of the Earnout Period, the vesting of any of the Earnout Shares has not occurred, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, shall be automatically forfeited and deemed transferred to Parent for cancellation for no consideration, and no Person (other than Parent) shall have any further right with respect thereto. (e) If, during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change. (f) If, during the applicable portion of the Earnout Period, there is a Change of Control that will result in the holders of Domesticated Parent Common Stock receiving a per share price equal to or in excess of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested shall be deemed vested; provided, that such Earnout Shares shall be deemed vested (and such vesting event achieved) only (x) if such Change of Control has been approved by a majority of the independent directors on the Parent Board and (y) to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested). (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions in respect of such Earnout Shares. For the avoidance of doubt, prior to vesting in accordance with the terms of this Section 3.3, holders of the Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time as the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”). Any attempted transfer in violation of the Transfer Restriction shall be void ab initio. For the avoidance of doubt, the Company, Parent, SpinCo and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect of the Earnout Shares.

Earnout. (a) Pursuant In addition to the MergerMerger Consideration provided to holders of HCI Common Stock, there shall be issued to following the Effective Time, each holder former stockholder of a share HCI that had shares of SpinCo HCI Common Stock and each holder exchanged for Merger Consideration (other than holders of a SpinCo Equity AwardDissenting Shares) pursuant to Section 2.2 hereof (the "Former HCI Stockholders") shall also be entitled to certain Earnout Payments ----------------------- (as defined below), their pro rata portionif any, as determined in accordance with the terms provisions of this Section 3.1(a) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject to the forfeiture provisions set forth in Section 3.3(d) (the “Earnout Shares”)2.3. (b) The Earnout Shares shall be subject Subject to paragraph (c) below, within 10 business days following the following vesting conditions: earlier of (i) Ifthe last day of ALC's fiscal quarter during which either (x) a permanent certificate of occupancy has been obtained, at any time during the period commencing on the Closing Date (y) a temporary certificate of occupancy and ending on the date that is five years after the Closing Date a license to operate a facility have been obtained or (the “Earnout Period”z) a sale/leaseback transaction has been closed with respect to an Identified Site (as defined in Section 6.8 hereof), the Parent Trading Price is greater than or equal to $12.50, 50% of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (ii) Iftwo years following the Effective Time with respect to any Identified Sites for which none of (x), (y) or (z) of the foregoing clause of this sentence have occurred, ALC shall provide an Earnout Payment, together with a notice setting forth the calculation of such Earnout Payment certified by the Chief Financial Officer or Controller of ALC (the "Earnout Payment Notice"), to each Former HCI Stockholder for each ---------------------- "unit" at any time during an assisted living facility that (I) is located on (or within 15 miles of) such Identified Site referred to in clause (i) of this sentence or (II) ALC intends to develop on (or within 15 miles of) such Identified Site referred to in clause (ii) of this sentence; it being understood that if more than one assisted living facility is located on (or within 15 miles of) an Identified Site, then Earnout Payments shall be provided by ALC with respect to all such assisted living facilities on (or within 15 miles of) such Identified Site. For purposes of this Agreement, an "Earnout Payment" shall be payable in --------------- certified or ALC company check and shall equal (A) $7,500 multiplied by (B) the number of "units" located on or to be developed on (or within 15 miles of) such Identified Site divided by (B) 4,857,500, for each share of HCI Common Stock held by such Former HCI Stockholder immediately prior to the Effective Time. ALC shall mail the Earnout PeriodPayment, the Parent Trading Price is greater than or equal to $15.00, the remaining 50% of together with the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject Payment Notice, to the forfeiture conditions provided address indicated by the respective Former HCI Stockholder on the Exchange Certificate submitted to the Exchange Agent in compliance with Section 3.3(d)2.2(a) hereof. (c) For ALC shall be obligated to provide Earnout Payments with respect to each and every assisted living facility that meets the avoidance criteria of doubtparagraph (b) of this Section 2.3, if not to exceed 39 of such facilities in the vesting conditions applicable to more than one of the provisions of Section 3.3(b) have been satisfied at any one time, then all of the Earnout Shares subject to such satisfied vesting conditions shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d)aggregate. (d) If, upon the expiration of the Earnout Period, the vesting of any of the Earnout Shares has not occurred, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, shall be automatically forfeited and deemed transferred to Parent for cancellation for no consideration, and no Person (other than Parent) shall have any further right with respect thereto. (e) If, during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change. (f) If, during the applicable Any portion of the Earnout Period, there is Payment that remains unclaimed by a Change of Control that will result in Former HCI Stockholder for twelve months after the holders of Domesticated Parent Common Stock receiving a per share price equal to or in excess date of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to mailing of the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested Payment Notice shall be deemed vested; providedabandoned and shall revert to ALC. Thereafter, that such Former HCI Stockholder shall have no claim or interest in the abandoned Earnout Shares Payment. Notwithstanding anything to the contrary contained herein, none of ALC, Newco, HCI, the Exchange Agent or any other person shall be deemed vested (and such vesting event achieved) only (x) if such Change of Control has been approved by a majority of the independent directors on the Parent Board and (y) liable to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals any Former HCI Stockholder for any property delivered to any public official pursuant to applicable abandoned property, escheat or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested)similar laws. (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions in respect of such Earnout Shares. For the avoidance of doubt, prior to vesting in accordance with the terms of this Section 3.3, holders of the Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time as the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”). Any attempted transfer in violation of the Transfer Restriction shall be void ab initio. For the avoidance of doubt, the Company, Parent, SpinCo and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect of the Earnout Shares.

Earnout. In further consideration of the purchase of sixty-five percent (a65%) Pursuant of the Assets Related Business, Prime agrees to pay Moadel the Mergeramount (if any) specified below, there shall be issued to each holder of a share of SpinCo Common Stock and each holder of a SpinCo Equity Award, their pro rata portion, as determined in accordance with the terms provisions below. Any amounts payable pursuant to this Section are in addition to payment of the Purchase Price pursuant to Section 3.1(a1.1, and no amount of the Purchase Price shall reduce amounts payable under this Section. (a) The net income for Newco shall be calculated for the twelve consecutive calendar months ending on the one-year anniversary of the Closing Date, using the same methodology and principles reflected in the calculation of Base Net Income (as hereinafter defined) shown on Schedule 4.6 attached hereto (the "First Anniversary Net Income"). If the First Anniversary Net Income exceeds Base Net Income by at least twenty percent (20%), Prime agrees to pay Moadel an amount equal to the result obtained by (A) dividing the Purchase Price by five (5) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject to the forfeiture provisions set forth in Section 3.3(dB) multiplying such quotient by 9.75% (the “Earnout Shares”"First Anniversary Earnout"). (b) The Earnout Shares net income for Newco shall be subject to calculated for the twelve consecutive calendar months ending on the two-year anniversary of the Closing Date, using the same methodology and principles reflected in the calculation of Base Net Income shown on Schedule 4.6 attached hereto (the "Second Anniversary Net Income"). To the extent that any one of the following vesting conditionsrequirements are met, Prime agrees to pay Moadel the respective amount determined as follows (the "Second Anniversary Earnout," and together with the First Anniversary Earnout, the "Earnout Payments"), with the understanding that a Second Anniversary Earnout, if any, will only be paid with respect to one of the following three alternatives, even if the requirements for more than one of the alternatives are satisfied: (i) If, If Second Anniversary Net Income exceeds First Anniversary Net Income by at any time during the period commencing on the Closing Date least twenty percent (20%) and ending on the date that is five years after the Closing Date (the “a First Anniversary Earnout Period”was due and payable in accordance with Section 4.6(a), the Parent Trading Price is greater than or then Prime agrees to pay to Moadel an amount equal to $12.50, 50% of the Earnout Shares held result obtained by each holder of Earnout Shares shall immediately vest (A) dividing the Purchase Price by five (5) and no longer be subject to the forfeiture conditions provided in Section 3.3(d)(B) multiplying such quotient by 22.75%. (ii) IfIf (a) Second Anniversary Net Income exceeds First Anniversary Net Income by less than twenty percent (20%), (b) Second Anniversary Net Income exceeds Base Net Income (as hereinafter defined) by at any time during the least forty percent (40%), and (c) a First Anniversary Earnout Periodwas due and payable in accordance with Section 4.6(a), the Parent Trading Price is greater than or then Prime agrees to pay to Moadel an amount equal to $15.00the result obtained by (A) dividing the Purchase Price by five (5) and (B) multiplying such quotient by 22.75%. (iii) If Second Anniversary Net Income exceeds Base Net Income by at least forty percent (40%) and a First Anniversary Earnout was not due and payable in accordance with Section 4.6(a), the remaining 50% of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject then Prime agrees to pay to Moadel an amount equal to the forfeiture conditions provided in Section 3.3(d)result obtained by (A) dividing the Purchase Price by five (5) and (B) multiplying such quotient by 32.50%. (c) For As used in this Agreement, Base Net Income shall mean the avoidance amount of doubt$2,464,383, if resulting from the vesting conditions applicable to more than one calculations contained in Schedule 4.6 attached hereto and representing the estimated recurring net income from the Assets Related Business (on a stand alone basis) for the twelve (12) consecutive calendar months ending March 31, 2000, based on information available at the date of the provisions of Section 3.3(b) have been satisfied at any one time, then calculation and assuming all of the Earnout Shares representations and warranties of PC and Moadel contained in this Agreement are true, complete and not misleading. The parties acknowledge and agree that the manner of calculation set forth on Schedule 4.6 attached hereto reflects the agreed upon means of calculating Base Net Income (subject to such satisfied vesting conditions shall immediately vest and no longer be subject to the forfeiture conditions provided exclusions/additions described below in Section 3.3(dsubsection (d)). (d) IfThe parties agree that, upon notwithstanding any provision of this Agreement to the expiration contrary, (i) the revenues, income, costs, and expenses (including, without limitation, startup and transaction costs, legal and accounting costs and fees, and applicable financing costs) resulting from or attributable to the acquisition and/or operation of any Existing Locations by Newco or Newco's subsidiaries shall be excluded from the calculation of the Earnout PeriodPayments and (ii) the revenues, income, costs, and expenses (including, without limitation, startup and transaction costs, legal and accounting costs and fees, and applicable financing costs), resulting from or attributable to the vesting development and/or operation of any New Locations by Newco or Newco's subsidiaries shall be included in the calculation of the Earnout Shares has not occurredPayments. To the extent possible, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, operating results from New Locations shall be automatically forfeited and deemed transferred incorporated into the calculation of the Earnout Payments in a manner consistent with the treatment on Schedule 4.6 of the operating results of PC existing immediately prior to Parent for cancellation for no considerationthe Effective Time, and no Person with appropriate departures to incorporate, among other items, non-recurring costs such as startup costs. The provisions of this subsection (other than Parentd) shall have not be construed to require any further right with respect theretoparty, including Newco, to develop or acquire any Target Location. (e) IfPrime shall calculate the First Anniversary Earnout within ninety (90) days of the end of the one-year anniversary of the Closing Date and shall calculate the Second Anniversary Earnout within ninety (90) days of the end of the two-year anniversary of the Closing Date. Within the applicable ninety (90) day period, during Prime shall deliver to PC, via certified or registered U.S. Mail, a statement (the "Calculation Statement") showing calculation of the applicable Earnout Payment and the basis on which it was calculated in reasonable detail. If PC shall fail to receive a Calculation Statement within either ninety (90) day period, then PC shall promptly notify Prime in writing that the Calculation Statement has not been received, and Prime shall have an additional five (5) days following its receipt of such notice from PC, within which Prime may deliver the Calculation Statement without having been in default under this subsection (d). If Prime fails to deliver the Calculation Statement within such additional five (5) day period, and an Earnout Payment is required, Prime agrees to pay interest at PMSI's overnight funds investment rate on the amount of the Earnout PeriodPayment, charged from the first day following such addition five (5) day period until the day on which the Calculation Statement is delivered. PC shall have thirty (30) days following its receipt of a Calculation Statement during which Newco and Prime agree to provide to Moadel and PC reasonable access to Newco's books and records. If PC shall fail to deliver an Objection Notice (as hereinafter defined) within such thirty (30) day period, then such failure shall constitute PC's acceptance of the respective Calculation Statement, which shall thereupon become conclusive and binding on all parties hereto, and shall not be subject to further review, challenge, or adjustment. During such thirty (30) day period, PC may deliver to Prime, via certified or registered U.S. Mail, a written notice of objection to the respective Calculation Statement (an "Objection Notice"), which Objection Notice shall set forth in reasonable detail PC's calculation of the Earnout Payment calculated therein, and PC's basis for objection, in which case the parties shall meet and in good faith attempt to resolve any disagreement within thirty (30) days after Prime's receipt of the Objection Notice. If the parties are unable to resolve such disagreement within such time period, the Domesticated Parent Common Stock outstanding as disagreement shall be referred to a "Big Five" accounting firm selected by mutual agreement of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity AdjustmentPC and Prime, or any similar event shall have occurredif the parties cannot agree on such selection, then a "Big Five" accounting firm selected by lot, excluding those that have provided services to PC or Prime within the applicable Parent Trading Price specified in Section 3.3(bpreceding twenty-four (24) months (the "Settlement Accountants"). The Settlement Accountants shall be directed to use their best efforts to reach a determination of the correct Earnout Payment (the "Audit Amount") within forty-five (45) days after such referral, and the Audit Amount shall be final and binding on the parties hereto, and shall not be subject to further review, challenge or adjustment. The costs and expenses of the services of the Settlement Accountants (the "Audit Costs") shall be equitably adjusted allocated to reflect and borne by each of Prime and Moadel pursuant to the following calculation. First, the Settlement Accountants shall calculate, for each of Prime and Moadel, the difference between such change. (f) If, during the applicable portion party's estimate of the Earnout PeriodPayment and the Audit Amount (for either party, there is expressed only as a Change positive number, the "Difference"). Next, each of Control that will result in the holders of Domesticated Parent Common Stock receiving a per Prime's and Moadel's share price equal to or in excess of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”)Audit Costs shall be determined by multiplying the Audit Costs by a fraction, the numerator of which shall be such party's Difference, and the denominator of which shall be the sum of the Differences of both parties. Notwithstanding the foregoing, if the Audit Amount exceeds Moadel's estimate, then immediately prior to Prime shall bear all Audit Costs, and if the consummation of such Change of ControlAudit Amount is lower than Prime's estimate, then Moadel shall bear all Audit Costs. Prime shall pay any applicable Earnout Shares that have not previously been vested shall be deemed vested; provided, that such Earnout Shares shall be deemed vested Payment in cash to PC within fifteen (and such vesting event achieved15) only (x) if such Change of Control has been approved by a majority days following the conclusive determination of the independent directors on the Parent Board and (y) to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested). (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions in respect amount of such Earnout SharesPayment pursuant to this paragraph. For With respect to any Earnout Payment that is being contested by the avoidance of doubtparties, prior Prime agrees to vesting pay in accordance with the terms of this Section 3.3, holders cash to PC Prime's estimate of the required Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time Payment (as shown in the vesting conditions with respect to such share have been satisfied respective Calculation Statement) within fifteen (the “Transfer Restriction”). Any attempted transfer in violation 15) days following Prime's receipt of the Transfer Restriction shall be void ab initio. For the avoidance of doubt, the Company, Parent, SpinCo and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect of the Earnout Sharesrespective Objection Notice.

Earnout. 2.3.1.1 The Parties agree that an additional amount (the “Earnout”) shall be due by Buyer to Seller as a supplemental Purchase Price for the Transferred Shares if, during the Relevant EO Period, (a) Pursuant the Buyer enters into Binding Agreements in respect of the Transfer of all or part of the Owned Real Property in one or several related transactions to one or more Unaffiliated Third Parties (the MergerEO Tranche 1), there shall it being further specified and agreed that any payment hereunder of the EO Tranche 1 shall, in any case, be issued subject to each holder actual completion of a share of SpinCo Common Stock and each holder of a SpinCo Equity Award, their pro rata portion, as determined the Transfer contemplated under the related Binding Agreements in accordance with the terms of Section 3.1(a) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject to the forfeiture provisions conditions set forth in Section 3.3(d) (the “Earnout Shares”).therein; (b) The Earnout the Buyer enters into Binding Agreements in respect of the Transfer of all or part of the Transferred Shares shall in one or several related transactions to one or more Unaffiliated Third Parties (the EO Tranche 2), it being further specified and agreed that any payment hereunder of the EO Tranche 2 shall, in any case, be subject to the following vesting conditions: (i) If, at any time during the period commencing on the Closing Date and ending on the date that is five years after the Closing Date (the “Earnout Period”), the Parent Trading Price is greater than or equal to $12.50, 50% actual completion of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to Transfer contemplated under the forfeiture conditions provided in Section 3.3(d). (ii) If, at any time during the Earnout Period, the Parent Trading Price is greater than or equal to $15.00, the remaining 50% of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (c) For the avoidance of doubt, if the vesting conditions applicable to more than one of the provisions of Section 3.3(b) have been satisfied at any one time, then all of the Earnout Shares subject to such satisfied vesting conditions shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (d) If, upon the expiration of the Earnout Period, the vesting of any of the Earnout Shares has not occurred, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, shall be automatically forfeited and deemed transferred to Parent for cancellation for no consideration, and no Person (other than Parent) shall have any further right with respect thereto. (e) If, during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change. (f) If, during the applicable portion of the Earnout Period, there is a Change of Control that will result in the holders of Domesticated Parent Common Stock receiving a per share price equal to or in excess of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested shall be deemed vested; provided, that such Earnout Shares shall be deemed vested (and such vesting event achieved) only (x) if such Change of Control has been approved by a majority of the independent directors on the Parent Board and (y) to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested). (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions in respect of such Earnout Shares. For the avoidance of doubt, prior to vesting related Binding Agreements in accordance with the terms of this Section 3.3, holders and conditions set forth therein; (c) the Company enters into Qualifying Leases with Unaffiliated Third Parties granting them occupancy rights on all or part of the Earnout Shares Owned Real Property (the EO Tranche 3); (d) the Buyer enters into Binding Agreements with any Unaffiliated Third Parties in respect of the Sale and Leaseback of all or part of the Owned Property (the EO Tranche 4), it being further specified and agreed that (x) any payment hereunder of the EO Tranche 4 shall, in any case, be subject to actual completion of the Sale and Leaseback contemplated under the related Binding Agreements in accordance with the terms and conditions set forth therein and (y) should a Transfer fall under the scope of EO Tranche 4, it shall not be entitled prevail EO Tranche 1; (the EO Tranche 1, the EO Tranche 2, the EO Tranche 3 and the EO Tranche 4 are hereinafter collectively referred to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time as the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”EO Tranches). Any attempted transfer in violation of the Transfer Restriction shall be void ab initio. . 2.3.1.2 For the avoidance of doubt, the CompanyParties further acknowledge and agree that: (a) no EO Tranche shall be due and payable in the event of (i) a merger between the Company and Buyer or one of its Affiliates or (ii) a Transfer of or all or part of the Transferred Shares or all or part of the Owned Real Property to an Affiliate of Buyer, Parentso long as the transferee remains an Affiliate of Buyer, SpinCo provided that if the Affiliate ceases to remain so, the relevant EO Tranche shall be due by Buyer and shall be computed on the basis of the value of the Company reflected in the price formula used by Buyer or its Affiliates in the transaction whereby the relevant Affiliate ceased to remain an Affiliate of Buyer and provided further that these transactions shall not affect the right of the Seller to receive any EO Tranche 1, EO Tranche 3 or EO Tranche 4, as may be due and payable in accordance with the terms herein; if the Company is combined (including by way of merger, absorption or other form of combination) with Buyer or any of its Affiliates, all EO Tranches shall automatically be transferred to the resulting entity (the Resulting Entity) and will be binding toward it and the EO Tranche 2 Earnout shall apply to the Transfer of the Shares of the Resulting Entity, provided however that (i) any value attributable to businesses, assets, activities or liabilities of the Resulting Entity which are not related to the businesses, assets, activities or liabilities of the Company on the Closing Date shall not give rise to any Earnout and (ii) the Parties shall jointly appoint (and will share the expense of) a mutually acceptable expert in order to assess the value of the former assets and liabilities of the Company that were in existence on the Closing Date and the share of the consideration received as a result thereof in the total consideration for the Transfer of the Resulting Entity. (b) no EO Tranche 1 shall be due and payable by Buyer as a result of the completion of a Permitted Transfer (c) no EO Tranche 3 shall be due and payable by Buyer as a result of a Permitted Lease; (d) no EO Tranche shall be due and payable by the Buyer should the Earn Out, for any specific transaction (or any series of related transactions), be lower than ten thousand euros (EUR 10,000) (the De Minimis). (e) each EO Tranche shall automatically, immediately and without any further formality, terminate upon expiry of the Relevant EO Period applicable thereto; (f) any EO Tranche 1, EO Tranche 2 and/or EO Tranche 4 (as applicable) shall, in any case, be subject to the actual completion of the transaction triggering payment of any such EO Tranche under the relevant Binding Agreements and, for the sake of clarity, no EO Tranche shall be due and payable for so long as the Binding Agreements entered into in connection therewith are not duly and satisfactorily completed in accordance with their relevant terms and conditions; (g) any EO Tranche 3 shall, in any case, be subject to the actual payment by the tenant under the relevant Qualifying Lease of the first rental for occupancy of the relevant premises under the terms of that relevant Qualifying Lease; (h) for the purposes of determining the EO Tranche 2, as may be applicable, if the Company were to acquire and/or hold after the Closing Date any asset (including real property asset) other than the Owned Real Property, the value allocable to any such other asset shall be deducted from the purchase price for the Transferred Shares deriving from the transaction triggering payment of the EO Tranche 2; (i) in case of series of transactions triggering payments of an EO Tranche, (x) if and where the determining of an EO Tranche results in a negative amount (and therefore, relieves Buyer from any payment obligation in connection therewith), any such negative amount shall be reported and offset against the amount of any other applicable withholding agent shall each EO Tranche, as may be entitled to deduct payable and withhold from any amounts due by Buyer in accordance with the terms herein and (y) only one EO Tranche may be due and payable for a same transaction, with no double counting or distributions made in respect covenant of the Earnout SharesBuyer to pay more than once an EO Tranche for a same transaction. The amount of each EO Tranche shall be as set forth in Schedule 2.3. If the Transfer of the Transferred Shares or the Owned Real Property to an Unaffiliated Third Party is made for a consideration which is not entirely in cash, then a cash equivalent to such consideration shall be determined in good faith by the Parties. Similarly, where adjustments are to be made to the determining of an EO Tranche due to the occurrence of events after the Closing Date (in particular, if value of other assets (including real property assets) acquired by the Company after the Closing Date are to be deducted to determine the amount of any EO Tranche 2 or in the circumstances described in paragraph (a) above), then the corresponding adjustments deriving therefrom to be taken into account in the determining of the relevant EO Tranche shall be determined in good faith by the Parties on the basis of an independent expert report, as provided in paragraph (a) above (mutatis mutandis). In the event of any dispute between the Parties as to the amount of any EO Tranche (including, as a result of the Parties failing to agree on the good faith determinations under the foregoing), such amount shall be conclusively determined by an Independent Accounting Firm in accordance with the provisions of Section 2.2.2, which are applicable mutatis mutandis for the purpose hereto. 2.3.1.3 Buyer undertakes to notify to Seller the occurrence of a transaction triggering payment of any EO Tranche in accordance with the terms herein, when applicable, the consideration to be received by Buyer in connection therewith (including payment mechanics) within seven (7) Business Days from the date of entry into the relevant binding agreement by Buyer, the Company or its Affiliate. An EO Tranche shall be due and payable by Buyer to Seller within thirty (30) calendar days following (the EO Payment Date): • with respect to EO Tranche 1, EO Tranche 2 or EO Tranche 4, the date on which Buyer receives actual payment in furtherance of the relevant Binding Agreements under which any such EO Tranche is due and payable (Buyer undertaking to notify Seller of such receipt within seven (7) Business days of receipt thereof), or • with respect to EO Tranche 3, the date on which the Third Party makes the first payment to the Company for the occupancy of the relevant premises (Buyer undertaking to notify Seller of such receipt within seven (7) Business days of receipt thereof), as appropriate, • and shall bear interest from the EO Payment Date through and including the date of actual payment of the relevant EO Tranche at a rate equal to EURIBOR 3 months plus 100 basis points. 2.3.1.4 An adjustment deed (acte d’ajustement), for tax registration purposes, shall be signed by the Parties and registered in due course by the Buyer, the related cost and expenses shall be borne by the Buyer.

Earnout. (a) Pursuant to During the Merger, there shall be issued to each holder of a share of SpinCo Common Stock and each holder of a SpinCo Equity Award, their pro rata portion, as determined in accordance with the terms of Section 3.1(asix (6) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject to the forfeiture provisions set forth in Section 3.3(d) (the “Earnout Shares”). (b) The Earnout Shares shall be subject to the month period following vesting conditions: (i) If, at any time during the period commencing on the Closing Date and ending on the date that is five years after the Closing Date (the “Earnout Period”), the Parent Trading Price is greater than or equal Seller shall be eligible to receive up to six (6) additional monthly payments (each, an “Earnout Payment”) in an aggregate amount of up to One Million Dollars ($12.50, 50% of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided 1,000,000) in accordance with this Section 3.3(d)2.04. (iib) If, at any time Within forty-eight (48) hours following the last day of each calendar month during the Earnout Period, Buyer will prepare and deliver to Seller a statement setting forth Buyer’s estimate of the Parent Trading Price is greater than or equal to $15.00aggregate amount of gross revenue received by the Company in respect of any Closing Receivable during such calendar month (each, a “Monthly Earnout Statement” and such aggregate amount of gross revenue received for each such month as set forth in the Monthly Earnout Statement, the remaining 50% “Monthly Collections”). Thereafter, upon forty-eight (48) hours’ prior written notice to Buyer, Buyer shall provide Seller and its advisors reasonable access to the books and records of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject Company that are relevant to the forfeiture preparation of such Monthly Earnout Statement during the normal business hours of the Company, solely for the purpose of identifying the accuracy of Company’s calculation of the Monthly Collections and the Earnout Payments as set forth therein; provided that Seller and its advisors shall not have access to any such books or records if the provision thereof would, in the good faith judgment of Xxxxx, (i) result in the loss of, or jeopardize, the attorney-client, attorney work product or any other similar legal privilege, (ii) result in a breach of the terms and conditions provided in of any Contract to which Buyer or the Company is a party or otherwise bound, or (iii) violate applicable Law. Any such review by Seller and its advisors pursuant to this Section 3.3(d)2.04(b) shall be at Seller’s sole expense. (c) For If Seller has any objections to any Monthly Earnout Statement, Seller shall deliver to Buyer a written statement setting forth its objections thereto (an “Earnout Objections Statement”) with reasonable supporting detail as to any such disputed items. If an Earnout Objections Statement is not delivered to Buyer within ten (10) days after delivery of the avoidance Monthly Earnout Statement to Seller, such Monthly Earnout Statement shall be final, binding and non-appealable on the Parties and all other Persons. If an Earnout Objections Statement is timely delivered, Seller and Buyer shall negotiate in good faith to resolve any such objections set forth therein, but if they do not reach a final resolution within ten (10) days after the delivery of doubtsuch Earnout Objections Statement, Seller and Buyer shall submit such dispute to an independent regionally recognized public accounting firm agreed upon by Seller and Buyer in writing (who shall not have any material relationship with Seller or Buyer or any of their respective Affiliates) (the “Accounting Firm”), provided that if Seller and Buyer cannot agree upon the Accounting Firm promptly following the end of the ten (10) day period after the delivery of an Earnout Objections Statement, either one of them may request that the New York City office of the American Arbitration Association (the “AAA”) select the Accounting Firm (who shall not have any material relationship with Seller or Buyer or any of their respective Affiliates). The Accounting Firm shall make a determination of any matters submitted to it pursuant to the terms hereof, and any such determination made by the Accounting Firm shall be final, conclusive and binding on all Parties and all other Persons. The Parties will cooperate with the Accounting Firm during the term of its engagement, including by providing or causing to be provided to the Accounting Firm such information or documentation as the Accounting Firm may reasonably request. If the Accounting Firm is engaged pursuant to the terms hereof, the Parties shall enter into a customary engagement letter with such Accounting Firm, and Seller, on the one hand, and Buyer, on the other hand, shall each agree to pay one-half of the fees and expenses of such Accounting Firm (and, if applicable, the vesting conditions applicable to more than one of the provisions of Section 3.3(b) have been satisfied at any one time, then all of the Earnout Shares subject to such satisfied vesting conditions shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(dAAA). (d) If, upon No later than ten (10) days following the expiration final and conclusive determination of the Monthly Collections for any calendar month during the Earnout Period, Buyer shall pay, or cause the vesting Company to pay, to Seller by wire transfer of any immediately available funds to an account designated by Seller an Earnout Payment in an amount equal to one hundred precent (100%) of such Monthly Collections; provided, however, the aggregate amount of all Earnout Shares has not occurred, then the applicable Earnout Shares that failed to vest Payments payable by Buyer pursuant to this Section 3.3(b2.04 shall not exceed One Million Dollars ($1,000,000), as applicable, shall be automatically forfeited and deemed transferred to Parent for cancellation for no consideration, and no Person (other than Parent) shall have any further right with respect thereto. (e) IfAfter the Closing Date, Buyer shall cause the Company to maintain books and records for the Company in a manner intended to enable Buyer to accurately determine the amount of the Monthly Collections and the corresponding Earnout Payments during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change. (f) If, during the applicable portion of the Earnout Period, there is a Change of Control that will result in the holders of Domesticated Parent Common Stock receiving a per share price equal to or in excess of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested shall be deemed vested; provided, that such Earnout Shares shall be deemed vested (and such vesting event achieved) only (x) if such Change of Control has been approved by a majority of the independent directors on the Parent Board and (y) to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested). (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions in respect of such Earnout Shares. For the avoidance of doubt, prior to vesting in accordance with the terms of this Section 3.3, holders of the Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time as the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”). Any attempted transfer in violation of the Transfer Restriction shall be void ab initio. For the avoidance of doubt, the Company, Parent, SpinCo and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect of the Earnout Shares.

Earnout. (a) Pursuant Subject to the MergerBorrower’s request, there shall be issued to each holder of a share of SpinCo Common Stock and each holder of a SpinCo Equity Award, their pro rata portion, as determined in accordance with the terms of Section 3.1(a) and the Employee Matters AgreementAdministrative Agent’s confirmation of the Borrower’s satisfaction of the conditions below, as applicableLenders shall disburse to or for the benefit of the Borrower, of in up to two (2) disbursements, up to an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject to the forfeiture provisions set forth in Section 3.3(d) additional $11,500,000 (the “Earnout SharesEarnout”). (b) The . Any undisbursed portion of the Earnout Shares shall be subject to cancelled on December 15, 2013. Disbursement of the Earnout shall be conditioned upon satisfaction of the following vesting conditions: (i) IfThe Borrower shall have delivered to the Administrative Agent a request for disbursement of all or a portion of the Earnout, at any time during which request shall have been received by the period commencing on Administrative Agent by not later than November 15, 2013. The Borrower’s request shall specify the Closing Date and ending on the date that is five years after the Closing Date (the “Earnout Period”), the Parent Trading Price is greater than or equal to $12.50, 50% amount of the Earnout Shares held by each holder requested, which amount, when added to any portion of the Earnout Shares previously disbursed, shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d).not exceed $11,500,000; (ii) If, at any time during the Earnout Period, the Parent Trading Price is greater than or equal to $15.00, the remaining 50% of the Earnout Shares held by each holder of Earnout Shares Borrower shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (c) For the avoidance of doubt, if the vesting conditions applicable to not have previously received more than one (1) partial disbursement of the provisions of Section 3.3(bEarnout; (iii) have been satisfied at any one time, then all As of the date of the Borrower’s request for disbursement, and as of the date on which the Earnout Shares subject is to such satisfied vesting conditions be disbursed, (A) no Default or Event of Default shall immediately vest and exist, (B) no longer be subject to the forfeiture conditions provided in Section 3.3(d). material default (d) If, upon beyond the expiration of the Earnout Period, the vesting of any of the Earnout Shares has not occurred, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(bnotice and cure periods), as applicabledetermined by the Administrative Agent, shall exist under the Management Agreement or the Franchise Agreement and (C) there shall have been no change, circumstance or occurrence which could reasonably be expected to have a Material Adverse Effect, as determined by the Administrative Agent in its sole discretion; (iv) The Debt Service Coverage Ratio, calculated as of the last day of each of the two (2) most recent fiscal quarters preceding the date of the Borrower’s request, shall be automatically forfeited and deemed transferred to Parent for cancellation for no considerationnot less than 1.35, and no Person (other than Parent) the Borrower shall have any further right with respect thereto. (e) Ifprovide evidence thereof acceptable to the Administrative Agent in its sole discretion; provided, during the Earnout Periodfor purposes of calculating Pro Forma Debt Service, the Domesticated Parent Common Stock “outstanding as principal balance of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) Loans” shall be equitably adjusted deemed to reflect such change. (f) If, during include the applicable portion of the Earnout Periodthat the Borrower has requested be disbursed; (v) The Borrower shall have paid to the Administrative Agent, there is for the ratable benefit of the Lenders, a Change of Control that will result non-refundable fee in the holders of Domesticated Parent Common Stock receiving a per share price an amount equal to or in excess one-quarter of one percent (0.25%) of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to amount of the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested for which the Borrower has requested disbursement. Such fee shall be deemed vested; providedearned when received; (vi) The Borrower shall have provided to the Administrative Agent, that such Earnout Shares shall be deemed vested (for its benefit and such vesting event achieved) only (x) if such Change of Control has been approved by a majority the benefit of the independent directors on Lenders, any endorsements reasonably requested by the Parent Board and (y) Administrative Agent to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock Title Policy; and (vii) The Borrower shall be calculated taking into account have satisfied all of the Earnout Shares (whether or not then vested). (g) For so long as any Earnout Shares remains subject conditions to the vesting and forfeiture conditions specified disbursement set forth in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions in respect of such Earnout Shares. For the avoidance of doubt, prior to vesting in accordance with the terms of this Section 3.3, holders of the Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time as the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”). Any attempted transfer in violation of the Transfer Restriction shall be void ab initio. For the avoidance of doubt, the Company, Parent, SpinCo and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect of the Earnout Shares6.2.

Earnout. (a) Pursuant Buyer acknowledges that Seller and Affiliates of Seller have commenced the process of negotiating to lease space at the Property to Xxxxxxx Fabrics and Goody's (the "New Tenants"). Attached hereto as Exhibit K is a chart showing the estimated size of premises which would be leased by each of such tenants and the projected per square foot and aggregate first year fixed annual rentals for each New Tenant (the "Chart"). In the event that: (i) the Buyer (or an Affiliate of Buyer) shall acquire title to the MergerProperty pursuant to this Agreement; and (ii) Seller shall, there no later than ninety (90) days after the date of Closing, cause to be delivered to Buyer a letter of intent to lease space at the Property executed by one of the New Tenants for space of at least the size indicated on the Chart and at a fixed annual rental rate of at least the rate indicated on the Chart for the respective New Tenant; and (iii) Buyer (or an Affiliate of Buyer) and one or more of the New Tenants shall fully execute and unconditionally delivered a lease of retail space at the Property (the "New Lease") on or before two hundred and forty (240) days after the date of Closing (except as otherwise provided in subsection (d) herein) for premises of a size and first year fixed annual rental rate for the respective New Tenant as indicated on the Chart; and (iv) the New Tenant shall, on or before one (1) year after the date of Closing, open for business in its new premises and commence the payment of fixed annual rent (except as otherwise provided in subsection (d) herein); then Seller shall be issued deemed to each holder have earned a fee on account thereof in the sum of a share of SpinCo Common Stock and each holder of a SpinCo Equity Award, their pro rata portion, as determined in accordance with the terms of Section 3.1(aOne Hundred Thousand ($100,000.00) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject to the forfeiture provisions set forth in Section 3.3(d) Dollars (the “"Earn-Out Fee"). The Earnout Shares”)Fee shall be payable in full by Buyer upon satisfaction of the foregoing conditions. (b) The Earnout Shares Buyer or its affiliated entity purchasing the Property shall be subject have the unqualified right, in its sole and absolute discretion, to refuse to enter into any lease with any New Tenant for any reason whatsoever without incurring any obligation to Seller for the following vesting conditions: (i) If, at any time during the period commencing on the Closing Date and ending on the date that is five years after the Closing Date (the “Earnout Period”), the Parent Trading Price is greater than or equal to $12.50, 50% payment of the Earnout Shares held by each holder Fee or any other consideration with respect to such New Tenant. Except as otherwise provided in subsection (d) herein, if for any reason whatsoever the conditions set forth in subsection (a) are not fulfilled within the time periods set forth in subsection (a), no Earn-Out Fee or other compensation shall be payable to Seller or any of Earnout Shares shall immediately vest and no longer be subject its Affiliates with respect to the forfeiture conditions provided in Section 3.3(d). (ii) If, at any time during the Earnout Period, the Parent Trading Price is greater than or equal to $15.00, the remaining 50% leasing of the Earnout Shares held by each holder Property, and Seller hereby acknowledges that in such instance it shall have no right to file a lien, against the Property or any interest of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d)Buyer (or any Affiliate thereof) therein. (c) For Buyer's agreement to pay the avoidance of doubtEarnout Fee is based on the assumption that Buyer shall not be obligated to pay any commission or other fee to a broker, if the vesting conditions applicable to more than one finder or other person in connection with any lease executed with any of the provisions New Tenants. Seller shall hold harmless, indemnify and defend Buyer (and all Affiliates thereof) from and against any and all claims, demands, actions, causes of Section 3.3(baction, suits, judgments, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) have been satisfied incurred in connection with demands for commissions or fees with respect to the leasing of retail space at the Property to any one timeof the New Tenants, except with respect to any broker retained by Buyer. If Buyer is required to pay a commission to any broker or finder in connection with a lease with any New Tenant (other than to a broker retained by Buyer), then all Buyer shall have the right to reduce the amount of the Earnout Shares subject Fee by the amount of any such commission which Buyer is required to such satisfied vesting conditions shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d)pay. (d) If, upon It is the expiration intent of the parties that Buyer not be able to avoid paying the Earnout PeriodFee on account of a lease with a New Tenant by waiting to satisfy the conditions under subsection (a) until after the required dates for satisfaction of such conditions have passed. Accordingly, if Seller shall have satisfied the vesting of any condition set forth in subsection (a)(ii), and Buyer shall be negotiating a lease with a New Tenant during the two hundred and forty (240) day period referred to in subsection (a)(iii), and such lease shall not be fully and unconditionally executed and delivered within such period but shall thereafter be fully and unconditionally executed and delivered within one year of the Earnout Shares has not occurreddate of Closing, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, Fee shall be automatically forfeited and deemed transferred to Parent for cancellation for no consideration, and no Person (other than Parent) shall have any further right with respect thereto. (e) If, during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change. (f) If, during the applicable portion of the Earnout Period, there is a Change of Control that will result in the holders of Domesticated Parent Common Stock receiving a per share price equal to or in excess of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested shall nevertheless be deemed vested; providedEarned, provided that such Earnout Shares the New Tenant shall be deemed vested open its premises for business and commence the payment of fixed rent no later than eighteen (and such vesting event achieved18) only months (xnotwithstanding the provisions of subsection (a)(iv) if such Change hereof) after the date of Control has been approved by a majority of the independent directors on the Parent Board and (y) to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested)Closing. (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions in respect of such Earnout Shares. For the avoidance of doubt, prior to vesting in accordance with the terms of this Section 3.3, holders of the Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time as the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”). Any attempted transfer in violation of the Transfer Restriction shall be void ab initio. For the avoidance of doubt, the Company, Parent, SpinCo and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect of the Earnout Shares.

Earnout. (a) Pursuant Buyer acknowledges that Seller and Affiliates of Seller have commenced the process of negotiating to lease space at the Property to Staples, Xxxxxxx Fabrics and Goody's (the "New Tenants"). Attached hereto as Exhibit K is a chart showing the estimated size of premises which would be leased by each of such tenants and the projected per square foot and aggregate first year fixed annual rentals for each New Tenant (the "Chart"). In the event that: (i) the Buyer (or an Affiliate of Buyer) shall acquire title to the MergerProperty pursuant to this Agreement; and (ii) Seller shall, there no later than ninety (90) days after the date of Closing, cause to be delivered to Buyer a letter of intent to lease space at the Property executed by one of the New Tenants for space of at least the size indicated on the Chart and at a fixed annual rental rate of at least the rate indicated on the Chart for the respective New Tenant; and (iii) Buyer (or an Affiliate of Buyer) and one or more of the New Tenants shall fully execute and unconditionally delivered a lease of retail space at the Property (the "New Lease") on or before two hundred and forty (240) days after the date of Closing (except as otherwise provided in subsection (d) herein) for premises of a size and first year fixed annual rental rate for the respective New Tenant as indicated on the Chart; and (iv) the New Tenant shall, on or before one (1) year after the date of Closing, open for business in its new premises and commence the payment of fixed annual rent (except as otherwise provided in subsection (d) herein); then Seller shall be issued deemed to each holder have earned a fee on account thereof in the sum of a share of SpinCo Common Stock and each holder of a SpinCo Equity Award, their pro rata portion, as determined in accordance with the terms of Section 3.1(aOne Hundred Thousand ($100,000.00) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject to the forfeiture provisions set forth in Section 3.3(d) Dollars (the “"Earn-Out Fee"). The Earnout Shares”)Fee shall be payable in full by Buyer upon satisfaction of the foregoing conditions. (b) The Earnout Shares Buyer or its affiliated entity purchasing the Property shall be subject have the unqualified right, in its sole and absolute discretion, to refuse to enter into any lease with any New Tenant for any reason whatsoever without incurring any obligation to Seller for the following vesting conditions: (i) If, at any time during the period commencing on the Closing Date and ending on the date that is five years after the Closing Date (the “Earnout Period”), the Parent Trading Price is greater than or equal to $12.50, 50% payment of the Earnout Shares held by each holder Fee or any other consideration with respect to such New Tenant. Except as otherwise provided in subsection (d) herein, if for any reason whatsoever the conditions set forth in subsection (a) are not fulfilled within the time periods set forth in subsection (a), no Earn-Out Fee or other compensation shall be payable to Seller or any of Earnout Shares shall immediately vest and no longer be subject its Affiliates with respect to the forfeiture conditions provided in Section 3.3(d). (ii) If, at any time during the Earnout Period, the Parent Trading Price is greater than or equal to $15.00, the remaining 50% leasing of the Earnout Shares held by each holder Property, and Seller hereby acknowledges that in such instance it shall have no right to file a lien against the Property or any interest of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d)Buyer (or any Affiliate thereof) therein. (c) For Buyer's agreement to pay the avoidance of doubtEarnout Fee is based on the assumption that Buyer shall not be obligated to pay any commission or other fee to a broker, if the vesting conditions applicable to more than one finder or other person in connection with any lease executed with any of the provisions New Tenants. Seller shall hold harmless, indemnify and defend Buyer (and all Affiliates thereof) from and against any and all claims, demands, actions, causes of Section 3.3(baction, suits, judgments, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) have been satisfied incurred in connection with demands for commissions or fees with respect to the leasing of retail space at the Property to any one timeof the New Tenants, except with respect to any broker retained by Buyer. If Buyer is required to pay a commission to any broker or finder in connection with a lease with any New Tenant (other than to a broker retained by Buyer), then all Buyer shall have the right to reduce the amount of the Earnout Shares subject Fee by the amount of any such commission which Buyer is required to such satisfied vesting conditions shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d)pay. (d) If, upon It is the expiration intent of the parties that Buyer not be able to avoid paying the Earnout PeriodFee on account of a lease with a New Tenant by waiting to satisfy the conditions under subsection (a) until after the required dates for satisfaction of such conditions have passed. Accordingly, if Seller shall have satisfied the vesting of any condition set forth in subsection (a)(ii), and Buyer shall be negotiating a lease with a New Tenant during the two hundred and forty (240) day period referred to in subsection (a)(iii), and such lease shall not be fully and unconditionally executed and delivered within such period but shall thereafter be fully and unconditionally executed and delivered within one year of the Earnout Shares has not occurreddate of Closing, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, Fee shall be automatically forfeited and deemed transferred to Parent for cancellation for no consideration, and no Person (other than Parent) shall have any further right with respect thereto. (e) If, during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change. (f) If, during the applicable portion of the Earnout Period, there is a Change of Control that will result in the holders of Domesticated Parent Common Stock receiving a per share price equal to or in excess of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested shall nevertheless be deemed vested; providedEarned, provided that such Earnout Shares the New Tenant shall be deemed vested open its premises for business and commence the payment of fixed rent no later than eighteen (and such vesting event achieved18) only months (xnotwithstanding the provisions of subsection (a)(iv) if such Change hereof) after the date of Control has been approved by a majority of the independent directors on the Parent Board and (y) to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals or exceeds the applicable Parent Trading Price required in connection with such vesting eventClosing. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested). (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions in respect of such Earnout Shares. For the avoidance of doubt, prior to vesting in accordance with the terms of this Section 3.3, holders of the Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time as the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”). Any attempted transfer in violation of the Transfer Restriction shall be void ab initio. For the avoidance of doubt, the Company, Parent, SpinCo and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect of the Earnout Shares.[signature page follows]

Earnout. (a) Pursuant Subject to the MergerSection 2.8(d), there shall be issued to each holder a total number of a share of SpinCo Common Stock and each holder of a SpinCo Equity Award, their pro rata portion, as determined in accordance with the terms of Section 3.1(a) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock equal to up to (without duplication), subject to i) $156,000,000 divided by (ii) the forfeiture provisions set forth in Section 3.3(d) Trust Value Per Share (the “Earnout Shares”), divided into two tranches, the first of which shall consist of $50,000,000 divided by the Trust Value Per Share of the total Earnout Shares (the “First Tranche”) and the second of which shall consist of $106,000,000 divided by the Trust Value Per Share of the total Earnout Shares (the “Second Tranche”) (each, a “Tranche”), shall be issuable to the Company Stockholders subject to and in accordance with the terms and conditions of this Section 2.9. (b) The Not more than ten (10) Business Days after Parent has filed its Annual Report on Form 10-K for the fiscal year ended December 31, 2009, Parent shall notify the Escrow Representative of and shall publicly disclose in a Form 8-K filed with the SEC of its determination of the Earnout Shares shall be subject EBITDA for the fiscal year ended December 31, 2009. If the Earnout EBITDA for the fiscal year ended December 31, 2009, is equal to the following vesting conditions: (i) If, at any time during the period commencing on the Closing Date and ending on the date that is five years after the Closing Date or greater than $55,000,000 (the achievement of the foregoing, the “Earnout PeriodFirst Target”), then within ten (10) Business Days, or twenty (20) Business Days if the Company has made any election of the type described in Section 2.9(f), after the public disclosure of the Earnout EBITDA for such period, Parent Trading Price is greater than or equal to $12.50, 50% shall issue the First Tranche of the Earnout Shares held by each holder of (less any Earnout Shares for which an offer made by the Company pursuant to Section 2.9(f) has been accepted), which shares (the “First Target Shares”) and cash, if any, shall immediately vest and no longer be subject to allocated among the forfeiture conditions provided Company Stockholders in accordance with Section 2.9(g) hereof. Except as specified in Section 3.3(d2.9(e). (ii) If, at any time during if the Earnout PeriodFirst Target is not achieved upon completion of the audit of Parent’s financial statements for 2009, the Parent Trading Price is greater than or equal to $15.00, the remaining 50% of the Earnout Shares held by each holder of Earnout First Target Shares shall immediately vest and no longer not be subject to the forfeiture conditions provided in Section 3.3(d)issuable. (c) For Not more than ten (10) Business Days after Parent has filed its Annual Report on Form 10-K for the avoidance fiscal year ended December 31, 2010, Parent shall notify the Escrow Representative of doubtand shall publicly disclose in a Form 8-K filed with the SEC of its determination of the Earnout EBITDA for the fiscal year ended December 31, 2010. If the Earnout EBITDA for the fiscal year ended December 31, 2010, is equal to or greater than $78,000,000 (the achievement of the foregoing, the “Second Target”), then within ten (10) Business Days, or twenty (20) Business Days if the vesting conditions applicable to more than one Company has made any election of the provisions type described in Section 2.9(f), after the public disclosure of Section 3.3(b) have been satisfied at any one timethe Earnout EBITDA for such period, then all Parent shall issue the Second Tranche of the Earnout Shares subject (less any Additional First Tranche Earnout Shares issued in accordance with Section 2.9(d) and less any Earnout Shares for which an offer made by the Company pursuant to such satisfied vesting conditions Section 2.9(f) has been accepted), which shares (the “Second Target Shares”) and cash, if any, shall immediately vest and no longer be subject to allocated among the forfeiture conditions provided Company Stockholders in accordance with Section 2.9(g) hereof. Except as specified in Section 3.3(d2.9(e), if the Second Target is not achieved upon completion of the audit of Parent’s financial statements for 2010, the Second Target Shares shall not be issuable. (d) IfIn addition to the foregoing, upon if the expiration Earnout EBITDA for the fiscal year ended December 31, 2009 is greater than $55,000,000, then for every dollar by which such Earnout EBITDA exceeds $55,000,000 up to a maximum of $80,000,000 of Earnout EBITDA, Parent shall within ten (10) Business Days, or twenty (20) Business Days if the Company has made any election of the type described in Section 2.9(f), after the public disclosure of the Earnout PeriodEBITDA for such period, the vesting of any of the Earnout Parent shall issue additional First Target Shares has not occurred, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, shall be automatically forfeited and deemed transferred to Parent for cancellation for no consideration, and no Person (other than Parent) shall have any further right with respect thereto. (e) If, during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change. (f) If, during the applicable portion of the Earnout Period, there is a Change of Control that will result in the holders of Domesticated Parent Common Stock receiving a per share price equal to or in excess of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested shall be deemed vested; provided, that such Earnout Shares shall be deemed vested (and such vesting event achieved) only (x) if such Change of Control has been approved by a majority of the independent directors on the Parent Board and (y) to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested). (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried $1 divided by such Earnout Shares and (ii) receive any dividends or other distributions in respect of such the Trust Value Per Share (the “Additional First Tranche Earnout Shares. For ”) (less any Earnout Shares for which an offer made by the avoidance of doubtCompany pursuant to Section 2.9(f) has been accepted), prior to vesting which shares and cash, if any, shall be allocated among the Company Stockholders in accordance with the terms of this Section 3.3, holders of the Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time as the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”). Any attempted transfer in violation of the Transfer Restriction shall be void ab initio. For the avoidance of doubt, the Company, Parent, SpinCo and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect of the Earnout Shares2.9(g) hereof.

Earnout. (a) Pursuant Following the Closing, and as additional consideration for the Transaction, within five (5) Business Days after the occurrence of the Trigger Event (subject to the MergerSection 2.17(d)), there Acquiror shall issue or cause to be issued to each holder of a share of SpinCo Common Stock and each holder of a SpinCo Equity Award, their Company Stockholder its pro rata portionportion of the Earnout Shares, as determined in accordance with the terms Allocation Schedule, which shall be registered pursuant to Securities Laws. In connection with a Trigger Event which is a Change in Control, such Earnout Shares shall be issued as of Section 3.1(a) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject immediately prior to the forfeiture provisions set forth effectiveness of the Change in Section 3.3(d) (the “Earnout Shares”)Control. (b) The Earnout Shares shall be subject to Unless otherwise required by a “determination” within the following vesting conditions: meaning of Section 1313(a) of the Code, the Parties acknowledge and agree (i) If, at that any time during Earnout Shares paid to the period commencing on Company Stockholders shall be treated as additional consideration for the Closing Date and ending on Surviving Company Stock for all income Tax purposes that can be received without imposition of tax (other than to the date that is five years after extent treated as interest under Section 483 of the Closing Date (Code or any similar provision of the “Earnout Period”Code), and (ii) to prepare and file all Tax Returns consistent with such Tax treatment. Notwithstanding anything in this Agreement to the Parent Trading Price is greater than or equal contrary, the right to $12.50, 50% of receive the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer under this Agreement may not be subject to the forfeiture conditions provided assigned or transferred, other than as may be permitted in Section 3.3(d). (ii) If, at any time during the Earnout Period, the Parent Trading Price is greater than or equal to $15.00, the remaining 50% of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d)accordance with Rev. Proc. 84-42. (c) For Notwithstanding anything to the avoidance contrary contained herein, no fraction of doubt, if the vesting conditions applicable to more than one an Earnout Share will be issued by virtue of the provisions Trigger Event, and each Person who would otherwise be entitled to a fraction of Section 3.3(b) have been satisfied at any one time, then an Earnout Share (after aggregating all of the fractional Earnout Shares subject that otherwise would be received by such Person in connection with the occurrence of a Trigger Event) shall instead have the number of Earnout Shares issued to such satisfied vesting conditions shall immediately vest and no longer be subject Person rounded down to the forfeiture conditions provided in Section 3.3(d)nearest whole number. (d) If, upon If no Trigger Event has occurred prior to the expiration eighth anniversary of the Earnout PeriodClosing Date, the vesting this Section 2.17 shall automatically terminate and be of any of the Earnout Shares has not occurred, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, shall be automatically forfeited and deemed transferred to Parent for cancellation for no considerationfurther force or effect, and no Person (other than Parent) shall have any further right with respect thereto. (e) If, during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change. (f) If, during the applicable portion of the Earnout Period, there is a Change of Control that will result in the holders of Domesticated Parent Common Stock receiving a per share price equal to or in excess of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested shall be deemed vested; provided, that such Earnout Shares shall be deemed vested (and such vesting event achieved) only (x) if such Change of Control has been approved by a majority of the independent directors on the Parent Board and (y) to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested)issuable hereunder. (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions in respect of such Earnout Shares. For the avoidance of doubt, prior to vesting in accordance with the terms of this Section 3.3, holders of the Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time as the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”). Any attempted transfer in violation of the Transfer Restriction shall be void ab initio. For the avoidance of doubt, the Company, Parent, SpinCo and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect of the Earnout Shares.

Earnout. (a) Pursuant In addition to the MergerMerger Consideration provided to holders of HCI Common Stock, there shall be issued to following the Effective Time, each holder former stockholder of a share HCI that had shares of SpinCo HCI Common Stock and each holder exchanged for Merger Consideration (other than holders of a SpinCo Equity AwardDissenting Shares) pursuant to Section 2.2 hereof (the "Former HCI ---------- Stockholders") shall also be entitled to certain Earnout Payments (as defined ------------ below), their pro rata portionif any, as determined in accordance with the terms provisions of this Section 3.1(a) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject to the forfeiture provisions set forth in Section 3.3(d) (the “Earnout Shares”)2.3. (b) The Earnout Shares shall be subject Subject to paragraph (c) below, within 10 business days following the following vesting conditions: earlier of (i) Ifthe last day of ALC's fiscal quarter during which either (x) a permanent certificate of occupancy has been obtained, at any time during the period commencing on the Closing Date (y) a temporary certificate of occupancy and ending on the date that is five years after the Closing Date a license to operate a facility have been obtained or (the “Earnout Period”z) a sale/leaseback transaction has been closed with respect to an Identified Site (as defined in Section 6.8 hereof), the Parent Trading Price is greater than or equal to $12.50, 50% of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (ii) Iftwo years following the Effective Time with respect to any Identified Sites for which none of (x), (y) or (z) of the foregoing clause of this sentence have occurred, ALC shall provide an Earnout Payment, together with a notice setting forth the calculation of such Earnout Payment certified by the Chief Financial Officer or Controller of ALC (the "Earnout Payment Notice"), to each Former HCI Stockholder for each ---------------------- "unit" at any time during an assisted living facility that (I) is located on (or within 15 miles of) such Identified Site referred to in clause (i) of this sentence or (II) ALC intends to develop on (or within 15 miles of) such Identified Site referred to in clause (ii) of this sentence; it being understood that if more than one assisted living facility is located on (or within 15 miles of) an Identified Site, then Earnout Payments shall be provided by ALC with respect to all such assisted living facilities on (or within 15 miles of) such Identified Site. For purposes of this Agreement, an "Earnout Payment" shall be payable in --------------- certified or ALC company check and shall equal (A) $7,500 multiplied by (B) the number of "units" located on or to be developed on (or within 15 miles of) such Identified Site divided by (B) 4,857,500, for each share of HCI Common Stock held by such Former HCI Stockholder immediately prior to the Effective Time. ALC shall mail the Earnout PeriodPayment, the Parent Trading Price is greater than or equal to $15.00, the remaining 50% of together with the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject Payment Notice, to the forfeiture conditions provided address indicated by the respective Former HCI Stockholder on the Exchange Certificate submitted to the Exchange Agent in compliance with Section 3.3(d)2.2(a) hereof. (c) For ALC shall be obligated to provide Earnout Payments with respect to each and every assisted living facility that meets the avoidance criteria of doubtparagraph (b) of this Section 2.3, if not to exceed 39 of such facilities in the vesting conditions applicable to more than one of the provisions of Section 3.3(b) have been satisfied at any one time, then all of the Earnout Shares subject to such satisfied vesting conditions shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d)aggregate. (d) If, upon the expiration of the Earnout Period, the vesting of any of the Earnout Shares has not occurred, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, shall be automatically forfeited and deemed transferred to Parent for cancellation for no consideration, and no Person (other than Parent) shall have any further right with respect thereto. (e) If, during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change. (f) If, during the applicable Any portion of the Earnout Period, there is Payment that remains unclaimed by a Change of Control that will result in Former HCI Stockholder for twelve months after the holders of Domesticated Parent Common Stock receiving a per share price equal to or in excess date of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to mailing of the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested Payment Notice shall be deemed vested; providedabandoned and shall revert to ALC. Thereafter, that such Former HCI Stockholder shall have no claim or interest in the abandoned Earnout Shares Payment. Notwithstanding anything to the contrary contained herein, none of ALC, Newco, HCI, the Exchange Agent or any other person shall be deemed vested (and such vesting event achieved) only (x) if such Change of Control has been approved by a majority of the independent directors on the Parent Board and (y) liable to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals any Former HCI Stockholder for any property delivered to any public official pursuant to applicable abandoned property, escheat or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested)similar laws. (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions in respect of such Earnout Shares. For the avoidance of doubt, prior to vesting in accordance with the terms of this Section 3.3, holders of the Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time as the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”). Any attempted transfer in violation of the Transfer Restriction shall be void ab initio. For the avoidance of doubt, the Company, Parent, SpinCo and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect of the Earnout Shares.

Earnout. (a) Pursuant In addition to the Mergerconsideration described in Section 1.2(a) above, in the event that there is Qualifying Earnout Revenue, then the Purchasers shall pay to the Seller and the Affected Employees additional cash consideration in an aggregate amount equal to the lesser of (1) US$10,000,000 or (2) the product of US$0.667 multiplied by the Qualifying Earnout Revenue (as adjusted pursuant to this Section 1.2(b), the “Earnout Payment”), less any applicable withholding taxes to the Seller, as set forth herein, within thirty (30) days of the Determination Date (as defined below), with (A) an amount equal to thirty percent (30%) of the Earnout Payment to be issued paid by the Purchasers (or their Affiliates) to each holder of a share of SpinCo Common Stock and each holder of a SpinCo Equity Award, their pro rata portion, the Affected Employees as determined in accordance with the terms of Affected Employee Earnout Allocation delivered by the Seller pursuant to Section 3.1(a) and the Employee Matters Agreement, as applicable, of an aggregate of 15,000,000 shares of Domesticated Parent Common Stock (without duplication), subject to the forfeiture provisions set forth in Section 3.3(d1.2(b)(v) (the “Affected Employee Earnout SharesPayment”)., less any applicable withholding taxes to the Affected Employees, and (B) an amount equal to seventy percent (70%) of the Earnout Payment, less any applicable withholding taxes to the Seller; provided, that:” (b1.6 A new Section 1.2(b)(vi) The Earnout Shares shall be subject added to the following vesting conditions: Asset Purchase Agreement and shall read in its entirety as follows: “(b)(vi) In the event that the IP Purchaser determines in its reasonable discretion that it is required to withhold any applicable withholding taxes with respect to the payment of the Earnout Payment to the Seller, then (i) If, IP Purchaser shall so notify the Seller at any the time during of the period commencing on the Closing Date and ending on the date that is five years after the Closing Date (the “Earnout Period”), the Parent Trading Price is greater than or equal to $12.50, 50% delivery of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (ii) IfStatement, at any time during the Earnout Period, the Parent Trading Price is greater than or equal to $15.00, the remaining 50% of the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (c) For the avoidance of doubt, if the vesting conditions applicable to more than one of the provisions of Section 3.3(b) have been satisfied at any one time, then all of the Earnout Shares subject to such satisfied vesting conditions shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (d) If, upon the expiration of the Earnout Period, the vesting of any of the Earnout Shares has not occurred, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, shall be automatically forfeited and deemed transferred to Parent for cancellation for no consideration, and no Person (other than Parent) shall have any further right with respect thereto. (e) If, during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change. (f) If, during the applicable portion of the Earnout Period, there is a Change of Control that will result in the holders of Domesticated Parent Common Stock receiving a per share price equal to or in excess of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested shall be deemed vested; provided, that such Earnout Shares shall be deemed vested (and such vesting event achieved) only (x) if such Change of Control has been approved by a majority of the independent directors on the Parent Board and (y) to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested). (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions the Seller may, in respect of its discretion, direct the IP Purchaser to make such Earnout SharesPayment directly to the Seller’s shareholders on a pro-rata basis based on their equity interest in the Seller (less any applicable withholding taxes to the relevant shareholder of the Seller). For the avoidance of doubt, prior to vesting in accordance with the terms of this Section 3.3, holders The respective percentage allocations of the Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time Payment as between the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”). Any attempted transfer in violation shareholders of the Transfer Restriction Seller shall be void ab initio. For provided to the avoidance of doubt, IP Purchaser in writing by the Company, Parent, SpinCo Seller and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect accompanied by a certified copy of the Earnout SharesSeller’s register of members.” 1.7 Section 1.5(b)(ii) shall be amended to read in its entirety as follows:

Earnout. (a) Pursuant On the Closing Date, Parent shall deposit all of the Escrowed Earnout Shares with U.S. Bank, N.A. or another escrow agent mutually agreed to by Parent and the Company (the “Escrow Agent”), to be held in an escrow account for the purpose of distributing such shares to the MergerCompany Stockholders upon the valuation of the ARS, there as described in this Section 2.8. The Escrowed Earnout Shares shall be issued to each holder in the name of a share the Escrow Agent for the benefit of SpinCo Common Stock and each holder of a SpinCo Equity Award, their pro rata portion, as determined the Company Stockholders in accordance with the terms and conditions of this Section 3.1(a) 2.8 and an agreement to be entered into at the Closing between Parent, the Company, the Stockholders’ Representative and the Employee Matters AgreementEscrow Agent, in customary form and substance as applicable, of an aggregate of 15,000,000 shares of Domesticated reasonably agreed to by Parent Common Stock (without duplication), subject to and the forfeiture provisions set forth in Section 3.3(d) Company (the “Earnout SharesEscrow Agreement”). The Escrow Agreement shall provide that the Escrow Agent shall execute consents in lieu of a stockholders’ meeting with respect to, or vote, the Escrowed Earnout Shares on all matters in the same proportion as the other Transaction Shares not held by the Escrow Agent are so voted or for which consents in lieu of a stockholders’ meeting are so executed. (b) The Earnout Shares shall be subject Subject to Section 2.8 hereof, upon the last day of the forty-ninth (49th) month following vesting conditions: (i) If, at any time during the period commencing on the Closing Date and ending on the date that is five years after the Closing Date (the “Earnout PeriodDistribution Date”), each Company Stockholder (other than Company Stockholders who properly exercised appraisal rights pursuant to Section 262 in connection with the Parent Trading Price is greater than or equal to $12.50Merger, 50% of which such Company Stockholders shall have the Earnout Shares held by each holder of Earnout Shares shall immediately vest and no longer be subject to the forfeiture conditions rights as provided in Section 3.3(d2.7(g). ) shall receive from Parent that number of shares of Parent Common Stock equal to the difference between: (i) the product of multiplying (x) the Escrowed Earnout Shares by (y) such holder’s Pro Rata Percentage by (z) the applicable “Distribution Percentage of Escrowed Earnout Shares” set forth in the far right column of the table set forth in Exhibit B attached hereto (the “Earnout Calculation Table”) less (ii) If, at any time during the Earnout Period, product of multiplying (y) the Parent Trading Price is greater than or equal to $15.00, ARS Loss Share Equivalent by (z) such holder’s Pro Rata Percentage less (iii) the remaining 50% product of multiplying (y) the Earnout Shares held Municipal Derivative Litigation Liabilities Share Equivalent by each holder (z) such holder’s Pro Rata Percentage less (iv) the product of Earnout Shares shall immediately vest and no longer be subject to multiplying (y) the forfeiture conditions provided in Section 3.3(d). Excess Dividend Share Equivalent by (cz) For the avoidance such holder’s Pro Rata Percentage. The applicable Distribution Percentage of doubt, if the vesting conditions applicable to more than one of the provisions of Section 3.3(b) have been satisfied at any one time, then all of the Earnout Shares subject to such satisfied vesting conditions shall immediately vest and no longer be subject to the forfeiture conditions provided in Section 3.3(d). (d) If, upon the expiration of the Earnout Period, the vesting of any of the Earnout Shares has not occurred, then the applicable Earnout Shares that failed to vest pursuant to Section 3.3(b), as applicable, shall be automatically forfeited and deemed transferred to Parent for cancellation for no consideration, and no Person (other than Parent) shall have any further right with respect thereto. (e) If, during the Earnout Period, the Domesticated Parent Common Stock outstanding as of immediately following the Merger Effective Time shall have been changed into a different number of shares or a different class, by reason of any Equity Adjustment, or any similar event shall have occurred, then the applicable Parent Trading Price specified in Section 3.3(b) shall be equitably adjusted to reflect such change. (f) If, during the applicable portion of the Earnout Period, there is a Change of Control that will result in the holders of Domesticated Parent Common Stock receiving a per share price equal to or in excess of the applicable Parent Trading Price required in connection with an applicable vesting event (an “Acceleration Event”), then immediately prior to the consummation of such Change of Control, any applicable Earnout Shares that have not previously been vested shall be deemed vested; provided, that such Escrowed Earnout Shares shall be deemed vested the percentage that the Aggregate ARS Market Value (and such vesting event achieved) only (x) if such Change of Control has been approved by a majority of the independent directors on the Parent Board and (y) to the extent the price per share of Domesticated Parent Common Stock in the Change of Control equals or exceeds the applicable Parent Trading Price required in connection with such vesting event. For the avoidance of doubt, in the event of a Change of Control, including where the consideration payable is other than a specified price per share, for purposes of determining whether a Parent Trading Price required in connection with an applicable vesting event has been achieved, the price paid per share of Domesticated Parent Common Stock shall be calculated taking into account all of the Earnout Shares (whether or not then vested). (g) For so long as any Earnout Shares remains subject to the vesting and forfeiture conditions specified in Section 3.3(b) and Section 3.3(d), the holder thereof shall be entitled to (i) exercise the voting rights carried by such Earnout Shares and (ii) receive any dividends or other distributions in respect of such Earnout Shares. For the avoidance of doubt, prior to vesting in accordance with the terms of this Section 3.3, holders of the Earnout Shares shall not be entitled to transfer such shares, and such shares shall bear a legend prohibiting transfer until such time as the vesting conditions with respect to such share have been satisfied (the “Transfer Restriction”). Any attempted transfer in violation of the Transfer Restriction shall be void ab initio. For the avoidance of doubt, the Company, Parent, SpinCo and any other applicable withholding agent shall each be entitled to deduct and withhold from any amounts payable or distributions made in respect of the Earnout Shares.as