Common use of Fiscal Year Ending December 31, 2008 Clause in Contracts

Fiscal Year Ending December 31, 2008. Make Good Pledgor agrees that in the event that either (i) the After-Tax Net Income for the fiscal year ended December 31, 2008 reported in the Company’s Annual Report on Form 10-KSB for the fiscal year ending December 31, 2008, as filed with the Commission (the “2008 Annual Report”) is less than $30,000,000 (the “2008 Guaranteed ATNI”) or (ii) the earnings per share reported in the 2008 Annual Report is less than $0.300 on a fully diluted basis (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions) (the “2008 Guaranteed EPS”), in each case after adding back any compensation expense relating to the Escrow Shares or the return of any Escrow Shares to the Make Good Pledgor due to the achievement of 2008 Guaranteed ATNI and 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, Agent shall provide written instruction (with a copy to the Company) to the Escrow Agent to release to each Investor on a pro rata basis (based upon such Investor’s Investment Amount specified on Exhibit A attached hereto relative to the aggregate Investment Amounts of all Investors specified on Exhibit A attached hereto), for no additional consideration, 11,194,030 shares of Common Stock (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions) (the “2008 Make Good Shares”) and shall instruct the Transfer Agent to transfer into the name of each Investor, the number of 2008 Make Good Shares released to such Investor. The Escrow Agent need only rely on the letter of instruction from Agent in this regard and will disregard any contrary instructions. The Escrow Agent shall be entitled to rely on the calculations provided by Agent with the letter of instruction in releasing the Escrow Shares for disbursement, with no further responsibility to calculate or confirm amounts. If the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2008 specify that both (i) the 2008 Guaranteed ATNI and (ii) 2008 Guaranteed EPS, in each case after adding back any compensation expense relating to the Escrow Shares or the return of any Escrow Shares to the Make Good Pledgor due to the achievement of 2008 Guaranteed ATNI and 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, shall each have been achieved, the Agent shall provide written instruction (with a copy to the Company) to the Escrow Agent to release all 2008 Make Good Shares deposited with the Escrow Agent to the Make Good Pledgor within 10 Business Days after the date which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice of the 2008 Annual Report’s filing and results. Any releases of 2008 Make Good Shares required to be made to Investors under this Section shall be made to Investors within 10 Business Days after the date which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice of the 2008 Annual Report’s filing and results.”

Fiscal Year Ending December 31, 2008. Make Good Pledgor agrees that in the event that either (A) (i) the After-Tax Net Income for the fiscal year ended December 31, 2008 reported in the Company’s Annual Report on Form 10-KSB for the fiscal year ending December 31, 2008, as filed with the Commission (the “2008 Annual Report”) plus (ii) the amount of any charges recorded against the Company’s After-Tax Net Income that were attributable to the release or transfer of any or all of the 2007 Make Good Shares is less than $30,000,000 (the “2008 Guaranteed ATNI”) or (iiB) the earnings per share reported in the 2008 Annual Report is less than $0.300 on a fully diluted basis (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions) (the “2008 Guaranteed EPS”), in each case after adding back any compensation expense relating to the Escrow Shares or the return of any Escrow Shares to the Make Good Pledgor due to the achievement of 2008 Guaranteed ATNI and 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, Agent shall provide written instruction (with a copy to the Company) to the Escrow Agent to release to each Investor on a pro rata basis (based upon such Investor’s Investment Amount specified on Exhibit A attached hereto relative to the aggregate Investment Amounts of all Investors specified on Exhibit A attached hereto), for no additional consideration, 11,194,030 shares of Common Stock (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions) (the “2008 Make Good Shares”) and shall instruct the Transfer Agent to transfer into the name of each Investor, the number of 2008 Make Good Shares released to such Investor. The Escrow Agent need only rely on the letter of instruction from Agent in this regard and will disregard any contrary instructions. The Escrow Agent shall be entitled to rely on the calculations provided by Agent with the letter of instruction in releasing the Escrow Shares for disbursement, with no further responsibility to calculate or confirm amounts. If the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2008 specify that both (i) the 2008 Guaranteed ATNI and (ii) 2008 Guaranteed EPS, EPS shall each have been achieved (i.e. both (i) the After-Tax Net Income reported in each case after adding back the 2008 Annual Report plus the amount of any compensation expense relating charges recorded against the Company’s After-Tax Net Income that were attributable to the Escrow Shares release or the return transfer of any Escrow Shares to or all of the 2007 Make Good Pledgor due Shares is equal to or greater than the achievement of 2008 Guaranteed ATNI and (ii) the earnings per share reported in the 2008 Annual Report is equal to or greater than the 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, shall each have been achieved), the Agent shall provide written instruction (with a copy to the Company) to the Escrow Agent to release all 2008 Make Good Shares deposited with the Escrow Agent to the Make Good Pledgor within 10 Business Days after the date which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice of the 2008 Annual Report’s filing and results. Any releases of 2008 Make Good Shares required to be made to Investors under this Section shall be made to Investors within 10 Business Days after the date which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice of the 2008 Annual Report’s filing and results.”

Fiscal Year Ending December 31, 2008. Make Good Pledgor agrees that in the event that either (i) if the After-Tax Net Income for the fiscal year ended December 31, 2008 reported in the Company’s Annual Report on Form 10-KSB K for the fiscal year ending December 31, 2008, as filed with the Commission (the “"2008 Annual Report”") is less than $30,000,000 13,500,000 (the “"2008 Guaranteed ATNI”) or (ii) the earnings per share reported in the 2008 Annual Report is less than $0.300 on a fully diluted basis (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions) (the “2008 Guaranteed EPS”"), in each case after adding back any compensation expense relating to the Escrow Shares or the return of any Escrow Shares to the Make Good Pledgor due to the achievement of 2008 Guaranteed ATNI and 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, Agent HFG shall provide written instruction (with a copy to the Company) to and direct the Escrow Agent to release instruct the Transfer Agent to each Investor on a pro rata basis (based upon such Investor’s Investment Amount specified on Exhibit A attached hereto relative transfer to the aggregate Investment Amounts of all Investors specified on Exhibit A attached hereto)HFG, for no additional consideration, 11,194,030 a number of shares of Common Stock (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions) in accordance with the table below, based on the level of After-Tax Net Income reported in the 2008 Annual Report (such shares issuable to HFG being referred to herein as the “"2008 Make Good Shares”) and shall instruct the Transfer Agent to transfer into the name "): Percentage of each Investor, the number of Potential 2008 Make Good After Tax Net Income Reported in Shares released Issuable to such Investor. HFG 2008 Annual Report 25% $12,000,000-$13,499,999.99 50% $10,500,000-$11,999,999.99 75% $9,000,000-$10,499,999.99 100% Less than $9,000,000 The Escrow Agent need only rely on the letter of instruction from Agent HFG in this regard and will disregard any contrary instructions. The Escrow Agent shall be entitled to rely on the calculations provided by Agent with the letter of instruction HFG in releasing the Escrow Shares for disbursement, with no further responsibility to calculate or confirm amounts. If the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2008 specify that both (i) the 2008 Guaranteed ATNI and (ii) 2008 Guaranteed EPS, in each case after adding back any compensation expense relating to the Escrow Shares or the return of any Escrow Shares to the Make Good Pledgor due to the achievement of 2008 Guaranteed ATNI and 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, shall each have been achieved, no transfer of the Agent 2008 Make Good Shares shall be required by this Section and HFG shall provide written instruction (with a copy to the Company) to the Escrow Agent to release return all 2008 Make Good Shares deposited with the Escrow Agent to the Make Good Pledgor within 10 7 Business Days after the date on which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice of the 2008 Annual Report’s filing and results. Any releases Subject to the timing of the Transfer Agent, transfers of 2008 Make Good Shares required to be made to Investors under this Section shall be made to Investors HFG or its affiliates within 10 7 Business Days after the date on which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice of the 2008 Annual Report’s filing and results.”

Fiscal Year Ending December 31, 2008. The Make Good Pledgor agrees Pledgors agree that in if the event that either (i) the Company’s After-Tax Net Income for the fiscal year ended December 31, 2008 reported in the Company’s Annual Report on Form 10-KSB for the fiscal year ending December 31, 2008, as filed with the Commission (the “2008 Annual Report”, and as adjusted in accordance with Section 5.2(d) of the Purchase Agreement, is less than $30,000,000 (the “2008 Guaranteed ATNI”) or (ii) the earnings per share reported in the 2008 Annual Report is less than $0.300 on a fully diluted basis (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions) (the “2008 Guaranteed EPS”), in each case after adding back any compensation expense relating to the Escrow Shares or the return of any Escrow Shares to the Make Good Pledgor due to the achievement of 2008 Guaranteed ATNI and 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, Agent Sterne shall provide written instruction (with a copy to the Company) to the Escrow Agent to release to each Investor on a pro rata basis (based upon such Investor’s Investment Amount specified on Exhibit A attached hereto relative to the aggregate Investment Amounts of all Investors specified on Exhibit A attached hereto), for no additional consideration, 11,194,030 shares of Common Stock (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions) (the “2008 Make Good Shares”) and shall instruct the Transfer Agent to transfer into to each Investor their pro rata share of the name of each Investor, the number of 2008 Make Good Shares released to such Investoras determined under Section 5.2(e) of the Purchase Agreement. The Escrow Agent need only rely on the letter of instruction from Agent Sterne in this regard and will disregard any contrary instructions. The Escrow Agent shall be entitled to rely reply on the calculations provided by Agent with the letter of instruction Sterne in releasing the Escrow Shares for disbursement, with no further responsibility to calculate or confirm amounts. If the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2008 specify Annual Report reflect that both (i) the 2008 Guaranteed ATNI and (ii) 2008 Guaranteed EPS, in each case after adding back any compensation expense relating to the Escrow Shares or the return of any Escrow Shares to the Make Good Pledgor due to the achievement of 2008 Guaranteed ATNI and 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, shall each have has been achieved, no transfer of the Agent 2008 Make Good Shares shall be required by this Section and Sterne shall provide written instruction (with a copy to the Company) to the Escrow Agent to release return all 2008 Make Good Shares deposited with the Escrow Agent to the Make Good Pledgor Pledgors within 10 seven Business Days after the date which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice by Sterne of the 2008 Annual Report’s filing and results. Any releases Subject to the timing of the Transfer Agent, transfers of 2008 Make Good Shares required to be made to Investors under this Section shall be made to Investors within 10 seven Business Days after the date which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice by Sterne of the 2008 Annual Report’s filing and results.”

Fiscal Year Ending December 31, 2008. Make Good Pledgor agrees that in the event that either (i) if the After-Tax Net Income for the fiscal year ended December 31, 2008 reported in the Company’s Annual Report on Form 10-KSB K for the fiscal year ending December 31, 2008, as filed with the Commission (the “2008 Annual Report”) is less than $30,000,000 13,500,000 (the “2008 Guaranteed ATNI”) or (ii) the earnings per share reported in the 2008 Annual Report is less than $0.300 on a fully diluted basis (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions) (the “2008 Guaranteed EPS”), in each case after adding back any compensation expense relating to the Escrow Shares or the return of any Escrow Shares to the Make Good Pledgor due to the achievement of 2008 Guaranteed ATNI and 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, Agent Xxxxx Xxxxxx shall provide written instruction (with a copy to the Company) to and direct the Escrow Agent to release instruct the Transfer Agent to transfer to each Investor (in such Investor’s name), on a pro rata basis (based upon such Investor’s Investment Amount specified on Exhibit A attached hereto relative to the aggregate Investment Amounts of all Investors specified on Exhibit A attached hereto), for no additional consideration, 11,194,030 a number of shares of Common Stock (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions) in accordance with the table below, based on the level of After-Tax Net Income reported in the 2008 Annual Report (such shares issuable to the Investors, the “2008 Make Good Shares”) and shall instruct the Transfer Agent to transfer into the name ): Percentage of each Investor, the number of Potential 2008 Make Good After Tax Net Income Reported in Shares released Issuable to such Investor. Investors 2008 Annual Report 25% $12,000,000-$13,499,999.99 50% $10,500,000-$11,999,999.99 75% $9,000,000-$10,499,999.99 100% Less than $9,000,000 The Escrow Agent need only rely on the letter of instruction from Agent Xxxxx Xxxxxx in this regard and will disregard any contrary instructions. The Escrow Agent shall be entitled to rely on the calculations provided by Agent with the letter of instruction Xxxxx Xxxxxx in releasing the Escrow Shares for disbursement, with no further responsibility to calculate or confirm amounts. If the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2008 specify that both (i) the 2008 Guaranteed ATNI and (ii) 2008 Guaranteed EPS, in each case after adding back any compensation expense relating to the Escrow Shares or the return of any Escrow Shares to the Make Good Pledgor due to the achievement of 2008 Guaranteed ATNI and 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, shall each have been achieved, no transfer of the Agent 2008 Make Good Shares shall be required by this Section and Xxxxx Xxxxxx shall provide written instruction (with a copy to the Company) to the Escrow Agent to release return all 2008 Make Good Shares deposited with the Escrow Agent to the Make Good Pledgor within 10 7 Business Days after the date on which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice of the 2008 Annual Report’s filing and results. Any releases Subject to the timing of the Transfer Agent, transfers of 2008 Make Good Shares required to be made to Investors under this Section shall be made to Investors within 10 7 Business Days after the date on which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice of the 2008 Annual Report’s filing and results. In the event that the 2008 Guaranteed ATNI is not achieved based on the Company's consolidated financial statements for the fiscal year ended December 31, 2008, as filed with the Commission, the Company has agreed that Xxxxx Xxxxxx will provide written instruction to the Escrow Agent and the Company with regard to the distribution of 2008 Make Good Shares, up to an amount to each Investor as set forth on Exhibit A attached hereto. The Escrow Agent need only rely on the letter of instruction from Xxxxx Xxxxxx in this regard and will disregard any contrary instructions. The Escrow Agent shall be entitled to rely on the calculations provided by Xxxxx Xxxxxx in releasing the Escrow Shares for disbursement, with no further responsibility to calculate or confirm amounts.”

Fiscal Year Ending December 31, 2008. The Make Good Pledgor agrees that in if the event that either (i) the Company’s After-Tax Net Income for the fiscal year ended December 31, 2008 reported in the Company’s Annual Report on Form 10-KSB K for the fiscal year ending December 31, 2008, as filed with the Commission (the “2008 Annual Report”) is less than $30,000,000 8,200,000 (the “2008 Guaranteed ATNI”) or (ii) the earnings per share reported in the 2008 Annual Report is less than $0.300 on a fully diluted basis (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions) (the “2008 Guaranteed EPS”), in each case after adding back any compensation expense relating to the Escrow Shares or the return of any Escrow Shares to the Make Good Pledgor due to the achievement of 2008 Guaranteed ATNI and 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, Agent Rxxx shall provide written instruction (with a copy to the Company) to and cause the Escrow Agent to release instruct Transfer Agent to transfer to each Investor (in such Investor’s name) on a pro rata basis (based upon such Investor’s Investment Amount specified on Exhibit A attached hereto relative to the aggregate Investment Amounts Amount of all Investors specified on Exhibit A attached hereto), hereunder) for no additional consideration, 11,194,030 shares consideration a number of Common Stock 2008 Make Good Shares that is equal to: (as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactionssuch Investor’s Investment Amount / (4.986 x (2.14 / ($40,562,110 / actual After-Tax Net Income reported in the 2008 Annual Report)))) - the number of Shares issued in the transaction to such Investor (the “2008 Investor Shares”). Should the preceding formula yield a number equal to or less than zero, no transfer of 2008 Make Good Shares”) and Shares shall instruct be made to Investors. In no event shall the Transfer Agent failure by the Company to transfer into achieve the name 2008 Guaranteed ATNI result in the delivery by the Make Good Pledgor to the Investors of each Investor, a number of shares that is in excess of the number of 2008 Make Good Shares released to such Investorpledged hereunder. The Escrow Agent need only rely on the letter of instruction from Agent in this regard and will disregard any contrary instructions. The Escrow Agent shall be entitled to rely on the calculations provided by Agent with the letter of instruction in releasing the Escrow Shares for disbursement, with no further responsibility to calculate or confirm amounts. If the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2008 specify that both (i) the 2008 Guaranteed ATNI and (ii) 2008 Guaranteed EPS, in each case after adding back any compensation expense relating Subject to the Escrow Shares or timing of the return Transfer Agent, transfers of any Escrow 2008 Investor Shares to the Make Good Pledgor due Investors as required under this Section shall be made to the achievement of 2008 Guaranteed ATNI and 2008 Guaranteed EPS, or any expenses relating to the beneficial conversion feature attributable to the Company’s 5% convertible notes issued in January, 2008, shall each have been achieved, the Agent shall provide written instruction (with a copy to the Company) to the Escrow Agent to release all 2008 Make Good Shares deposited with the Escrow Agent to the Make Good Pledgor Investors within 10 7 Business Days after the date which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice of the 2008 Annual Report’s filing and results. Any releases If the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2008 specify that the 2008 Guaranteed ATNI shall have been achieved, no transfer of the 2008 Investor Shares to the Investors shall be required by this Section and Rxxx shall provide written instruction (with a copy to the Company) to the Escrow Agent to return all 2008 Make Good Shares required the Escrow Agent to be made to Investors under this Section shall be made to Investors the Make Good Pledgor within 10 7 Business Days after the date which the 2008 Annual Report is filed with the Commission, provided that Escrow Agent is given notice of the 2008 Annual Report’s filing and results. The Escrow Agent need only rely on the letter of instruction from Rxxx in this regard and will disregard any contrary instructions. The Escrow Agent shall be entitled to rely on the calculations provided by Rxxx in releasing the Escrow Shares for disbursement, with no further responsibility to calculate or confirm amounts.”