Common use of Earn-Out Payments Clause in Contracts

Earn-Out Payments. Subject to Section 10.6, following the earlier of June 1, 2023 and the date that is twelve (12) months following the date of the First Commercial Sale of Lyvispah (such date, the “Earn-Out Start Date”), Buyer shall pay to Sellers (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) (each such payment, an “Earn-Out Payment”). Such Earn-Out Payments shall be made no later than forty-five (45) calendar days following the end of each Calendar Quarter. Each such Earn-Out Payment shall be made to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out Payment, (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts to be received by Sellers with respect of any Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect to the likelihood of development or potential sales of the Pipeline Products, (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other than the right to receive the Earn-Out Payments pursuant to this Agreement.

Earn-Out Payments. Subject (a) In addition to Section 10.6the Initial Purchase Price, following the earlier of June 1, 2023 and the date that is twelve (12) months following the date of the First Commercial Sale of Lyvispah (such date, the “Earn-Out Start Date”), Buyer shall pay subject to Sellers (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occursany Purchase Price Adjustments as set forth in Sections 3.02(a) and (iib) fifteen percent above, FTS shall be eligible to receive a one-time earn-out payment (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) (each such payment, an “Earn-Out Payment”). Such Earn-Out Payments shall be made no later than forty-five (45) calendar days following , and the end Buyer, guaranties the payment of each Calendar Quarter. Each such Earn-Out Payments, upon achievement of EBITDA as follows: (i) If the EBITDA of the Purchased Shares, in the aggregate, exceeds $125,000 for year ending December 31, 2023, the Buyer shall pay FTS a one-time Earn-Out Payment shall be made to Sellers in the total amount of $75,000 no later than March 31, 2024 in cash, by wire transfer of immediately available U.S. funds in to one or more accounts designated by FTS at least two (2) Business Days prior to such respective amounts and in accordance with such wire instructions as Sellers payment date. (ii) FTS shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject not be entitled to Section 7.11, Buyer and any Affiliates of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out PaymentPayment if the EBITDA of the Purchased Shares, in the aggregate, is equal to or less than $125,000 for the year ending December 31, 2023. (2b) neither Within thirty (30) days following December 31, 2023, the Buyer nor any Affiliates shall deliver to FTS a statement setting forth the Buyer’s good faith calculation of the aggregate EBITDA of ULII for such year (the “EBITDA Statement”). The Buyer promised or projected any amounts to be received by Sellers with respect of any Earn-Out Paymentshall, and Sellers have not relied on any statements shall cause its representatives (including outside auditors) to, make available to FTS, at FTS’s expense (without charge for the Buyer’s costs) during normal business hours and following reasonable advance notice, the books, records, work papers, and personnel used or information provided by or on behalf of Buyer or its Affiliates with respect to involved in the likelihood of development or potential sales preparation of the Pipeline ProductsEBITDA Statement. If FTS disagrees with B▇▇▇▇’s calculation any Adjusted EBITDA Statement delivered pursuant to this Section 3.03(b), (3) neither FTS may, within 30 days after receipt of the EBITDA Statement, deliver a notice to Buyer nor any Affiliates disagreeing with such calculation and setting forth FTS’s calculation of Buyer owe any fiduciary duty such amount. Any such notice of disagreement shall specify in reasonable detail those items or amounts as to Sellerswhich FTS disagrees. If FTS’s ability to review the books, records, work papers, and (4) personnel used or involved in preparation of the Parties intend EBITDA Statement is delayed, then the express provisions 30-day period previously mentioned shall be adjusted by adding the number of this Agreement days between the receipt of the EBITDA Statement by FTS and the date upon which the books, records, work papers, and personnel used or involved are made available to govern FTS. If a notice of disagreement shall be duly delivered pursuant to Section 3.03(b), FTS and Buyer shall, during the 10 days after such delivery, use their contractual relationship and commercially best efforts to supersede any standard of efforts reach agreement on the disputed items or implied covenant of good faith and fair dealing that might otherwise amounts in order to determine, as may be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) required, the EBITDA, which amount shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other more than the right to receive the Earn-Out Payments amount thereof shown in FTS’s calculation delivered pursuant to this AgreementSection 3.03(b). If following such 10-day period, FTS and the Buyer are unable to reach such agreement, they shall promptly thereafter (and in any event within 20 days of the end of such 10-day period) cause a nationally recognized independent accounting firm mutually acceptable to them (the “Accounting Referee”) to review this Agreement and the disputed items or amounts for the purpose of calculating the EBITDA (it being understood that in making such calculation, the Accounting Referee shall be functioning as an expert and not as an arbitrator). The Accounting Referee shall deliver to FTS and the Buyer as promptly as practicable (but, in any case, no later than 30 days from the date of engagement of the Accounting Referee), a report setting forth such calculation. Such report shall be final and binding upon FTS and the Buyer. The cost of such review shall be borne equally by FTS and the Buyer. The Buyer and FTS shall, and shall cause their respective representatives to, and Buyer shall cause ULII and its respective representatives (including outside auditors) to, cooperate and assist in the determination of the EBITDA and in the conduct of the review set forth in this Section 3.02(b), including making available, to the extent necessary, books, records, work papers and personnel during normal business hours and following reasonable advance notice.

Earn-Out Payments. Subject (a) Purchaser shall make additional payments to Section 10.6Seller and Option Holder, following the earlier of June 1, 2023 and the date that is twelve (12) months following the date of the First Commercial Sale of Lyvispah (such date, the “EarnPro-Out Start Date”), Buyer shall pay to Sellers (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) Rata (each such payment, an “Earn-Earn Out Payment”). Such Earn-Out Payments shall be made no later than forty-five , within thirty (4530) calendar days following the end of each Calendar Quarter. Each month during the three (3) year period commencing on the first full month following the Closing (the “Earn Out Period”); provided that in lieu of monthly Earn Out Payments during the final fiscal quarter of the Earn Out Period, such Earn-final Earn Out Payment shall be made once within 60 calendar days following the end of such final fiscal quarter. Each Earn Out Payment shall be in an amount equal to Sellers by wire transfer 22.5% of immediately available U.S. funds Purchaser’s Adjusted Gross Profit (as defined in Section 2.2(c) below) derived from sales to non-affiliated third parties, plus 10% of amounts invoiced and delivered for Internally Delivered Services Revenue (“IDS Revenue,” as more fully defined in Section 2.2(d) below), in each case, for such respective amounts month or quarter, as applicable. Within sixty (60) calendar days following the end of each fiscal quarter during the Earn Out Period (except for the final fiscal quarter within the Earn Out Period), Purchaser shall reconcile all monthly Earn Out Payments made during such previous fiscal quarter, and (i) if 22.5% of the Adjusted Gross Profit derived from sales to non-affiliated third parties during such fiscal quarter is determined to have been greater than the aggregate monthly Earn Out Payments paid during such fiscal quarter, Purchaser shall promptly pay such shortfall to Seller and Option Holder, Pro-Rata; or (ii) if 22.5% of the Adjusted Gross Profit derived from sales to non-affiliated third parties during such fiscal quarter is determined to have been less than the aggregate monthly Earn Out Payments paid during such fiscal quarter, subsequent Earn Out Payments shall be correspondingly reduced in accordance with the amount of such wire instructions as Sellers over-payment. On a quarterly basis, the CFO of Purchaser shall specify certify, in writing, the accuracy of the calculations of the Earn Out Payments. For The parties hereby agree that Purchaser’s sales to dinCloud, Inc., ADSL or collab9 are sales to non-affiliated third parties for purposes of the avoidance calculation of doubtEarn Out Payments. (b) Notwithstanding anything herein to the contrary, upon the Closing and thereafter, subject Purchaser shall be permitted to Section 7.11, Buyer and transfer any Affiliates of Buyer shall have (A) the right Purchased Asset to own, operate, use, license, develop and otherwise Exploit the Pipeline Products any Person at any time in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, whether by transfer, sale, merger, operation of law or otherwise; provided, however, in the event of any such transfer by Purchaser, where the transferred asset is a sales person or is a Qualified Customer Account, Seller and Option Holder shall be entitled to receive, Pro-Rata: (Bi) in the right to determine the terms and conditions case of a transfer of any such sales person, 22.5% of the development and Commercialization Adjusted Gross Profit generated by such sales person following the date of such transfer for the duration of the Pipeline Products, and any and all sales Earn Out Period; or (ii) in the case of the Pipeline Products, including the determination a transfer of a Qualified Customer Account (regardless of whether or not one or more sales persons servicing such Qualified Customer Account are also transferred), either (y) 22.5% of the Adjusted Gross Profit generated by such Qualified Customer Account for the duration of the Earn Out Period, if the Purchaser’s Affiliates (excluding Purchaser) did not also generate at least $100,000 of net sales from the same customer in the twelve (12) month period prior to develop or Commercialize the Pipeline Productssubject transfer, or (z) in the indication or indications for which event Purchaser’s Affiliates (excluding Purchaser) did also generate at least $100,000 of net sales from the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that same customer in the twelve (112) there is no assurance that Sellers will receive any Earn-Out Payment, (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts to be received by Sellers with respect of any Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect month period prior to the likelihood subject transfer, a percentage of development or potential Adjusted Gross Profit derived from sales to such Qualified Customer Account after the date of such transfer, which percentage shall be determined by multiplying 22.5% by a fraction, the numerator of which shall be the net sales of the Pipeline ProductsPurchaser (excluding Purchaser’s Affiliates) from the Qualified Customer Account during the twelve (12) month period prior to the subject transfer and the denominator of which shall be the sum of the net sales of the Purchaser from the Qualified Customer Account during such trailing twelve month period plus the net sales of all of Purchaser’s Affiliates (excluding Purchaser) from the customer during such trailing twelve (12) month period. In the event the subject transfer occurs less than twelve months following the Closing Date, the net sales of Seller from the Qualified Customer Account, for a period necessary prior to the Closing Date, will be added to the net sales of the Purchaser made following the Closing Date, to provide for twelve (312) neither Buyer nor full months of sales from such Qualified Customer Account in the determination of the trailing twelve (12) month period net sales of Purchaser necessary to make the calculations contemplated in this Section 2.2(b). Notwithstanding anything herein to the contrary, but subject to this Section 2.2(b) above, nothing in this Agreement shall prohibit Purchaser’s Affiliates (excluding Purchaser) from conducting business with any Affiliates of Buyer owe customer or prospect, including without limitation, any fiduciary duty to Sellerscustomer or prospect acquired by Purchaser in connection with the Transaction, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed such business engaged in by any court such Purchaser Affiliate with any such customer or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) prospect shall not be evidenced by deemed to be a certificate transfer or other instrumentconstructive transfer of such customer or prospect or any related account, and any Adjusted Gross Profit derived from any such business shall not be included in the calculation of Adjusted Gross Profit for purposes of Section 2.2(a) above. (yc) does not represent any right other than the right to receive the Earn-Out Payments pursuant to For purposes of this Agreement., “Adjusted Gross Profit” means the difference between Revenues and Cost of Goods Sold:

Earn-Out Payments. Subject to the Purchaser’s right to offset amounts pursuant to Section 10.6, following the earlier of June 1, 2023 and the date that is twelve (12) months following the date of the First Commercial Sale of Lyvispah (such date‎5.3(g), the “Earn-Out Start Date”), Buyer shall Purchaser will pay to Sellers (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of Seller the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) additional payments as follows (each such payment, an “EarnEarnout Payment,” and collectively, the “Earnout Payments”): (a) A one-Out Paymenttime cash payment in the amount of $20,000,000 (the “OEM Earnout”) payable upon completion, to the Purchaser’s reasonable satisfaction, of each of the actions described in Schedule ‎1.8(a) (the “OEM Earnout Conditions”). Such Earn-Out Payments , which shall be made no later than fortypayable in the manner described in Section ‎1.8(e) below. (b) A one-five time cash payment (45“Transfer Earnout”) calendar days in the amount of (i) $17,000,000 in the event that the Seller submits for EU MDR Certification for the Seller Products within 15 months of the First Closing Date, and the Second Closing has not yet taken place, or (ii) $13,000,000 in the event that the Seller submits for EU MDR Certification for the Seller Products after 15 months have passed since the First Closing Date, and the Second Closing has not yet taken place. (c) Payments based on Net Sales (each, a “Net Sales Earnout,” and collectively, the “Net Sales Earnouts”), as follows: (i) A one-time cash amount equal to 100% of the Net Sales achieved in the first four full fiscal quarters of the Purchaser after Purchaser’s first commercial sale of a Seller Product following satisfaction of the OEM Earnout Conditions (such period, the “Net Sales Earnout Period 1”), which shall be payable in the manner described in Section ‎1.8(e) below; (ii) A one-time cash amount equal to 75% of the Net Sales achieved in the four fiscal quarters of the Purchaser immediately following the end of each Calendar Quarter. Each Net Sales Earnout Period 1 (such Earn-Out Payment period, the “Net Sales Earnout Period 2”), which shall be made payable in the manner described in Section ‎1.8(e) below; (iii) A one-time cash amount equal to Sellers by wire transfer 50% of the Net Sales achieved in the four fiscal quarters of the Purchaser immediately available U.S. funds following the end of Net Sales Earnout Period 2 (such period, the “Net Sales Earnout Period 3”), which shall be payable in the manner described in Section ‎1.8(e) below; and (iv) A one-time cash amount equal to 50% of the Net Sales achieved in the four fiscal quarters of the Purchaser immediately following the end of Net Sales Earnout Period 3 (such respective amounts period, the “Net Sales Earnout Period 4”), which shall be payable in the manner described in Section ‎1.8(e) below. (d) The Seller acknowledges and agrees that the Purchaser is entitled to conduct the Business in accordance with such wire instructions as Sellers shall specify a manner that is in writing. For the avoidance best interests of doubtthe Purchaser, upon its stockholders and the Closing stockholders of its parent entities, and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have (A) the absolute right and sole and absolute discretion to own, operate, use, license, develop operate and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out Payment, (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts to be received by Sellers with respect of any Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates make decisions with respect to the likelihood of development or potential sales conduct of the Pipeline ProductsBusiness and to take or refrain from taking any action with respect thereto, (3) neither Buyer nor without any Affiliates of Buyer owe express or implied warranties or covenants to the Seller or any fiduciary duty to Sellersother person. Notwithstanding the foregoing, and (4) subject to the Parties intend Purchaser’s obligations under the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) Distribution Agreement, the Purchaser shall not be evidenced by a certificate take any action with the primary intent of frustrating, or other instrumentavoiding or reducing the payment of, and (y) does not represent any right other than of the right to receive the Earn-Out Payments pursuant to this AgreementEarnout Payments.

Earn-Out Payments. Subject to Section 10.6, following the earlier of June No later than October 1, 2023 and the date that is twelve (12) months following the date of the First Commercial Sale of Lyvispah (such date2012, the “Earn-Out Start Date”), Buyer Purchaser shall pay to Sellers (i) twelve the Selling Stockholder an amount equal to the Level 1 Earnout Amount without condition and one-half percent (12.5%) regardless of actual Revenues for the first Thirty Million US Dollars (Earnout Year ending June 30, 2012. In addition, if the Companies achieve Revenues greater than or equal to $30,000,000.00) of Net Sales of the Pipeline Products 123,000,000 during each Calendar any Earnout Year (including for the Calendar Earnout Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00ending June 30, 2012) (each such paymentthe "Level 2 Target"), then Purchaser shall pay to the Selling Stockholder an additional amount equal to the ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇. Each payment amount referenced in this Section 3.7(c) shall be referred to herein as an “Earn-Out PaymentEarnout Payment Amount” and collectively as the “Earnout Payment Amounts”). Such Earn-Out Payments shall be made no later than forty-five (45) calendar days following the end of each Calendar Quarter. Each such Earn-Out Any Earnout Payment shall be made to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out Payment, (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts to be received by Sellers with respect of any Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates Amount with respect to the likelihood ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ made within five (5) Business Days after the final determination of development Revenues for the applicable Earnout Year(s) for the Level 2 Earnout Amount and all Earnout Payment Amounts shall be made in cash by wire transfer by Purchaser of immediately available funds to an account designated by the Selling Stockholder; provided, however, if the Companies achieve Revenues greater than or potential sales equal to the Level 2 Target for the Earnout Year ending June 30, 2012, then (i) the ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ paid by adding the Level 2 Earnout Amount to the principal amount of the Pipeline Products, Note; (3ii) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellersinterest on the Level 2 Earnout Amount shall accrue and be paid in accordance with the Note, and (4iii) the Parties intend ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ paid over the express provisions then remaining term of the Note in equal quarterly installments (in each case in accordance with the terms of the Note). (f) The following is added at the end of Section 3.7(d): "The exclusion of GSBO from the definition of Companies shall not limit in any manner the covenants of Purchaser and its Affiliates under this Section 3.7(d) (and GSBO shall constitute both an Affiliate of Purchaser and a third party for purposes of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other than the right to receive the Earn-Out Payments pursuant to this AgreementSection 3.7(d))."

Earn-Out Payments. Subject Upon the terms and subject to the conditions of this Agreement, as additional consideration for the transfer of the Purchased Assets to Buyer pursuant to Section 10.6, following the earlier of June 1, 2023 and the date that is twelve (12) months following the date of the First Commercial Sale of Lyvispah (such date, the “Earn-Out Start Date”)2.1, Buyer shall pay to Sellers (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during Seller an amount in cash calculated with respect to each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during Period as follows: 3.6.1 For each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) Period, Buyer shall make the payments described in this Section 3.6.1 (each such paymentannual amount, an “Earn-Out Payment”). Such ) in the manner set forth in Section 3.6.4. (a) The Earn-Out Payments Payment for the First Earnout Period shall be made no later paid only if (i) Annual Aprinnova Actual Sales Value for the First Earnout Period (as finally determined pursuant to Section 3.6.2) exceeds the First Earnout Target and (ii) the Sales Volume for the First Earnout Period (as finally determined pursuant to Section 3.6.2) exceeds the First Earnout Volume Target. In such event, the Earn-Out Payment for the First Earnout Period (the “First Earnout Payment”) shall be equal to the lesser of (x) [***] and (y) fifty percent (50%) of (i) 4.4 multiplied by (ii) the amount by which Annual Aprinnova Actual Sales Value for the First Earnout Period (as finally determined pursuant to Section 3.6.2) is greater than fortythe First Earnout Target. (b) The Earn-five Out Payment for the Second Earnout Period shall be paid only if (45i) calendar Annual Aprinnova Actual Sales Value for the Second Earnout Period (as finally determined pursuant to Section 3.6.2) exceeds the Second Earnout Target and (ii) the Sales Volume for the Second Earnout Period (as finally determined pursuant to Section 3.6.2) exceeds the Second Earnout Volume Target. In such event, the Earn-Out Payment for the Second Earnout Period (the “Second Earnout Payment”) shall be equal to the lesser of (x) [***] and (y) fifty percent (50%) of (i) 4.4 multiplied by (ii) the amount by which Annual Aprinnova Actual Sales Value for the Second Earnout Period (as finally determined pursuant to Section 3.6.2) is greater than the Second Earnout Target. (c) The Earn-Out Payment for the Third Earnout Period shall be paid only if (i) Annual Aprinnova Actual Sales Value for the Third Earnout Period (as finally determined pursuant to Section 3.6.2) exceeds the Third Earnout Target and (ii) the Sales Volume for the Third Earnout Period (as finally determined pursuant to Section 3.6.2) exceeds the Third Earnout Volume Target. In such event, the Earn-Out Payment for the Third Earnout Period shall be equal to the lesser of (x) [***] and (y) fifty percent (50%) of (i) 4.4 multiplied by (ii) the amount by which Annual Aprinnova Actual Sales Value for the Third Earnout Period (as finally determined pursuant to Section 3.6.2) is greater than the Third Earnout Target. 3.6.2 Within thirty (30) days (or if the last day of such period is not a Business Day, then on the first Business Day following the last day of such period) following the end of each Calendar QuarterEarnout Period, Buyer will prepare and deliver to Seller a written schedule (the “Earn-Out Schedule”) setting forth its calculations of Annual Aprinnova Actual Sales Value, the Sales Volume and the Earn-Out Payment for such applicable Earnout Period, including the basis for such calculations set forth in reasonable detail. Each Upon receipt of the Earn-Out Schedule, Seller shall have twenty five (25) days (or if the last day of such period is not a Business Day, then on the first Business Day following the last day of such period) (the “Review Period”) to review the Earn-Out Schedule and the related calculations of Annual Aprinnova Actual Sales Value, the Sales Volume and the Earn-Out Payment. In connection with such review of the Earn-Out Schedule, Buyer shall, and shall cause the Aprinnova Business to, make available during normal business hours (subject to execution of customary confidential agreements) to Seller and its Representatives such documents, books, records, work papers, facilities, personnel and other information of Buyer with respect to the Aprinnova Business to the extent relating to the calculation of the Annual Aprinnova Actual Sales Value or the Sales Volume, in each case as Seller may reasonably request in order to permit the timely review of the Earn-Out Schedule in accordance with this Section 3.6.2; provided, that Buyer and the Aprinnova Business shall not be required to provide any such information or access if it would (i) violate any agreement or Law or (ii) result in the waiver of any legal privilege or work product protection; provided, that the applicable Party will notify the other Party in reasonable detail of the circumstances giving rise to any non-disclosure pursuant to the foregoing and to permit disclosure of such information to the extent possible, in a manner consistent with privilege or Law. If Seller has accepted such Earn-Out Payment Schedule in writing or has not given written notice (an “Earn-Out Statement of Objections”) to Buyer setting forth in reasonable detail any objection of Seller to the Earn-Out Schedule (which objections shall be made limited to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and the Annual Aprinnova Actual Sales Value or the Sales Volume not having been calculated in accordance with this Agreement or mathematical errors) prior to the expiration of the applicable Review Period, then such wire instructions as Sellers Earn-Out Schedule shall specify in writing. For the avoidance of doubt, be final and binding upon the Closing Parties, and thereafter, subject the Earn-Out Payment set forth on such Earn-Out Schedule shall be deemed to Section 7.11be the final Earn-Out Payment for such Earn-Out Period. Any items in the Earn-Out Statement not objected to in the Earn-Out Statement of Objections shall be final and binding on the Parties. If Seller delivers an Earn-Out Statement of Objections during the Review Period, Buyer and Seller shall use their reasonable efforts to agree on the amount of Annual Aprinnova Actual Sales Value, the Sales Volume and the Earn-Out Payment for such Earn-Out Period within fifteen (15) days (or if the last day of such period is not a Business Day, then on the first Business Day following the last day of such period) following the receipt by Buyer of the Earn-Out Statement of Objections. If the Parties are unable to reach an agreement as to such amounts within such fifteen (15) day period, then either Buyer or Seller may submit the matter to a mutually agreed internationally recognized certified public accounting firm that has not performed accounting, tax or auditing services for Buyer or Seller or any of their respective Affiliates after February 21, 2020 (the “Arbitrating Accountant”). The Arbitrating Accountant’s function will be to resolve each element of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way Earn-Out Statement of Objections that has not been resolved by Buyer and its Affiliates deem appropriateSeller, in their sole discretionto revise the Earn-Out Schedule to reflect such resolutions and to recalculate the Annual Aprinnova Actual Sales Value, the Sales Volume and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out Payment, if any, based on the elements and amounts reflected on the revised Earn-Out Schedule. The Parties shall use commercially reasonable efforts to cause the Arbitrating Accountant shall make such determination within thirty (230) neither days (or if the last day of such period is not a Business Day, then on the first Business Day following the last day of such period) following the submission of the matter to the Arbitrating Accountant for resolution, and such determination shall be final and binding upon Buyer nor and Seller. In making such determination, the Arbitrating Accountant will be bound by the provisions of this Agreement and may not revise any Affiliates element of Buyer promised the Earn-Out Schedule that is not contested in the Earn-Out Statement of Objections or projected assign a value to any amounts to be received disputed element of the Earn-Out Statement of Objections greater than the greatest value for such item claimed by Sellers with respect either Party or less than the smallest value for such item claimed by either Party. The Arbitrating Accountant shall act as an expert, not as an arbitrator. Each of any the Arbitrating Accountant’s decision, the revised Earn-Out Schedule and the revised calculation of the Annual Aprinnova Actual Sales Value, the Sales Volume and the Earn-Out Payment, if any, will be final and Sellers have not relied binding upon the Parties, and judgment may be entered on any statements or information provided by or on behalf the award. Buyer and Seller shall share the fees and expenses of Buyer or its Affiliates with respect the Arbitrating Accountant in inverse proportion to the likelihood of development or potential sales of the Pipeline Products, (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty relative amounts subject to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other than the right to receive the Earn-Out Payments pursuant Statement of Objections determined in favor of such Party, in accordance with the following formulas: (i) Seller shall pay a portion of such fees and expenses equal to this Agreementthe total fees and expenses multiplied by a fraction, the numerator of which is the dollar amount subject to the Earn-Out Statement of Objections resolved in favor of Buyer and the denominator of which is the total dollar amount subject to the Earn-Out Statement of Objections and (ii) Buyer shall pay a portion of such fees and expenses equal to the total fees and expenses multiplied by a fraction, the numerator of which is the dollar amount subject to the Earn-Out Statement of Objections resolved in favor of Seller and the denominator of which is the total dollar amount subject to the Earn-Out Statement of Objections.

Earn-Out Payments. Subject (a) With respect to Section 10.6the period commencing on the Closing Date through December 31, following the earlier of June 1, 2023 and the date that is twelve 2018 (12) months following the date of the First Commercial Sale of Lyvispah (such date, the “Earn-Out Start DatePeriod”), Buyer shall shall, subject to and on the terms set forth in Section 2.06(b), pay to Sellers Seller the amount equal to the applicable Earn-Out Percentage (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which as provided in the Earn-Out Start Date occursTable in Section 2.06(c) and (ii) fifteen percent (15%) of all Net Sales of for the Pipeline Products during each Calendar Year (including the Calendar Year during which corresponding calendar quarters in the Earn-Out Start Table) multiplied by the applicable Earn-Out Revenue for such quarter. Earn-Out Payments are deemed to be additional Purchase Price and shall be paid by wire transfer to an account designated in writing by Seller to Buyer no later than two Business Days prior to the Closing Date occursor such other account designated in writing by Seller to Buyer from time to time. (b) exceeding Thirty Million US Dollars The Earn-Out Payment payable for the period between the Closing Date and December 31, 2014 shall be remitted to Seller within 60 days following the end of the 4th calendar quarter of 2014 ($30,000,000.00the “First Earn-Out Payment”) and all subsequent Earn-Out Payments shall be remitted to Seller within 60 days following the end of each subsequent calendar quarter, unless a Notice of Earn-Out Disagreement is given by Seller pursuant to Section 2.06(f), and in such case then within five (5) Business Days after final determination of the Earn-Out Revenue to which such Earn-Out Payment relates pursuant to Section 2.06(f) and (g) (each such payment, an a “Quarterly Earn-Out Payment”). Such ; provided, however, that (x) neither the First Earn-Out Payments shall be made no later than forty-five (45) calendar days following the end of each Calendar Quarter. Each such Payment nor any Quarterly Earn-Out Payment shall be made if the aggregate Earn-Out Revenue is $3,000,000 (or with respect to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any First Earn-Out Payment, the same proportion of $3,000,000 that the number of days from the Closing Date to December 31, 2014 bears to 365) or less for the rolling 12-month period immediately preceding the end of the calendar quarter for which such Quarterly Earn-Out Payment is calculated (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts to be received by Sellers or, with respect of any to the First Earn-Out Payment, the period beginning on the Closing Date and Sellers have not relied ending on any statements or information provided by or on behalf of Buyer or its Affiliates with respect to the likelihood of development or potential sales of the Pipeline ProductsDecember 31, (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument2014), and (y) does not represent any right other than in the right to receive the event that there is a Notice of Earn-Out Payments pursuant Disagreement with respect to this Agreementany Quarterly Earn-Out Payment, then the amount set forth in the applicable Earn-Out Statement shall be paid within 60 days after the end of the calendar quarter to which such Earn-Out Statement Relates and any portion of the Quarterly Earn-Out Payment that is finally determined to be due will be paid within five (5) Business Days after such determination. Buyer and Seller agree that revenue for Aetrium handlers leased to customers shall be credited as revenue in the quarter shipped at full sales price on the lease for such equipment. Each Earn-Out Payment shall be accompanied by a statement (the “Earn-Out Statement”) setting forth in reasonable detail how the applicable Earn-Out Payment was calculated by Buyer.

Earn-Out Payments. Subject In addition to Section 10.6the Purchase Price, following the earlier of June 1Purchaser shall pay to the Sellers the 2008 Earn Out Payment, 2023 the 2009 Earn Out Payment and the date that is twelve 2010 Earn Out Payment (12) months following the date of the First Commercial Sale of Lyvispah (such datecollectively, the “Earn-Earn Out Start DatePayments”), Buyer which payments shall pay to Sellers (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) (each such payment, an “Earn-Out Payment”be calculated in accordance with Article 3.5(b). Such Earn-Out Payments shall be made no later than forty-five (45) calendar days following the end of each Calendar Quarter. Each such Earn-Earn Out Payment shall be made to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafterPurchaser, subject to Section 7.11the adjustments provided herein, Buyer and any Affiliates of Buyer to the Sellers pro rata based on their respective ownership levels in the Company immediately prior to Completion. The Earn Out Payments shall have be paid as follows: (Aa) The Purchaser will pay the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-2008 Earn Out Payment, which shall be equal to the ▇▇▇▇▇ Equivalent of US$ 13,000,000 (2thirteen million) neither Buyer nor any Affiliates of Buyer promised or projected any amounts less the deductions and adjustments set out in Article 3.5(b)(i) on March 31, 2009, provided that a Performance Report for 2008 has been signed by the Purchaser and the Seller Representative. If the Purchaser fails to sign the Performance Report without stating a reason for such failure by March 20, 2009 then such Performance Report shall be received deemed signed by Sellers with respect of any Earn-the Purchaser; (b) The Purchaser will pay the 2009 Earn Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect which shall be equal to the likelihood ▇▇▇▇▇ Equivalent of development or potential sales US$ 13,000,000 (thirteen million) less the deductions and adjustments set out in Article 3.5(b)(ii) on March 31, 2010, provided that a Performance Report for 2009 has been signed by the Purchaser and the Seller Representative. If the Purchaser fails to sign the Performance Report without stating a reason for such failure by March 20, 2010 then such Performance Report shall be deemed signed by the Purchaser; and (c) The Purchaser will pay the 2010 Earn Out Payment, which shall be equal to the ▇▇▇▇▇ Equivalent of US$ 13,000,000 (thirteen million) less the Pipeline Productsdeductions and adjustments set out in Article 3.5(b)(iii) on March 31, (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty 2011, provided that a Performance Report for 2010 has been signed by the Purchaser and the Seller Representative. If the Purchaser fails to Sellerssign the Performance Report without stating a reason for such failure by March 20, and (4) 2011 then such Performance Report shall be deemed signed by the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other than the right to receive the Earn-Out Payments pursuant to this AgreementPurchaser.

Earn-Out Payments. Subject to Section 10.6, following the earlier of June 1, 2023 and the date that is twelve (12) months following the date of the First Commercial Sale of Lyvispah (such date, the “The Earn-Out Start Date”)Payments, if any is owing pursuant to the terms of this Agreement, shall be paid by Buyer shall pay to Sellers (i) twelve and one-half percent (12.5%) of in accordance with the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the following schedule: i. The Period 1 Earn-Out Start Date occursPayment (if any) and (shall be paid by Buyer on or before April 30, 2023; ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the . The Period 2 Earn-Out Start Date occursPayment (if any) exceeding Thirty Million US Dollars ($30,000,000.00) (each such payment, an “Earn-Out Payment”). Such Earn-Out Payments shall be made no later than forty-five (45) calendar days following the end of each Calendar Quarterpaid by Buyer on or before April 30, 2023; iii. Each such The Period 3 Earn-Out Payment shall be made paid by Buyer on or before April 30, 2025; and iv. The Period 4 Earn-Out Payment shall be paid by Buyer on or before April 30, 2025; provided, however, that if the Seller Representative has timely delivered an Objection Notice with respect to the Earn-Out Statement for Earn-Out Period and the Disputed Item identified in the Objection Notice has not been resolved pursuant to Section 2 hereof on or before the date on which the applicable Earn-Out Payment is to be paid pursuant to Section 3(a)(i), (ii), (iii) or (iv), then (y) the Buyer will promptly (and in any event, within 10 days) following conclusion of the Disputed Item Negotiation Period pay to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions undisputed portion of the development and Commercialization of applicable Earn-Out Payment set forth in the Pipeline Products, and any and all sales of Earn-Out Statement (the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any “Interim Earn-Out Payment”) and (z) the Buyer will promptly (and in any event within 30 days) following final resolution of such Disputed Item and NAI- 1516168830v14 final determination of the applicable Earn-Out Payment pursuant to Section 2 hereof, (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts pay to be received by Sellers with respect of any the applicable Earn-Out Payment less the applicable Interim Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect . Each Earn-Out payment shall be paid to the likelihood of development or potential sales of Sellers in accordance with their underlying Participation Percentage (as defined in the Pipeline Products, Purchase Agreement) pursuant to wire instructions delivered by the Seller Representative to the Buyer on not less than three (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other than the right to receive the Earn-Out Payments pursuant to this AgreementBusiness Days’ advance written notice.

Earn-Out Payments. Subject In addition to Section 10.6the Purchase Price, following the earlier of June 1Purchaser shall pay to the Sellers the 2008 Earn Out Payment, 2023 the 2009 Earn Out Payment and the date that is twelve 2010 Earn Out Payment (12) months following the date of the First Commercial Sale of Lyvispah (such datecollectively, the “Earn-Earn Out Start DatePayments”), Buyer which payments shall pay to Sellers (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) (each such payment, an “Earn-Out Payment”be calculated in accordance with Article 3.5(b). Such Earn-Out Payments shall be made no later than forty-five (45) calendar days following the end of each Calendar Quarter. Each such Earn-Earn Out Payment shall be made to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafterPurchaser, subject to Section 7.11the adjustments provided herein, Buyer and any Affiliates of Buyer to the Sellers pro rata based on their respective ownership levels in the Company immediately prior to Completion. The Earn Out Payments shall have be paid as follows: (Aa) The Purchaser will pay the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-2008 Earn Out Payment, which shall be equal to the ▇▇▇▇▇ Equivalent of US$ 11,000,000 (2eleven million) neither Buyer nor any Affiliates less the deductions and adjustments set out in Article 3.5(b)(i), within 10 working days from the date of Buyer promised or projected any amounts filing of CTC Media’s 2008 annual report on Form 10-K with the SEC, but not later than March 31, 2009, provided that a Performance Report for 2008 has been signed by the Purchaser and the Seller Representative. If the Purchaser fails to sign the Performance Report without stating a reason for such failure by March 20, 2009 then such Performance Report shall be received deemed signed by Sellers with respect of any Earn-the Purchaser; (b) The Purchaser will pay the 2009 Earn Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect which shall be equal to the likelihood ▇▇▇▇▇ Equivalent of development or potential sales US$ 9,000,000 (nine million) less the deductions and adjustments set out in Article 3.5(b)(ii), within 10 working days from the date of filing of CTC Media’s 2009 annual report on Form 10-K with the SEC, but not later than March 31, 2010, provided that a Performance Report for 2009 has been signed by the Purchaser and the Seller Representative. If the Purchaser fails to sign the Performance Report without stating a reason for such failure by March 20, 2010 then such Performance Report shall be deemed signed by the Purchaser; and (c) The Purchaser will pay the 2010 Earn Out Payment, which shall be equal to the ▇▇▇▇▇ Equivalent of US$ 9,000,000 (nine million) less the deductions and adjustments set out in Article 3.5(b)(iii), within 10 working days from the date of filing of CTC Media’s 2010 annual report on Form 10-K with the SEC, but not later than March 31, 2011, provided that a Performance Report for 2010 has been signed by the Purchaser and the Seller Representative. If the Purchaser fails to sign the Performance Report without stating a reason for such failure by March 20, 2011 then such Performance Report shall be deemed signed by the Purchaser; provided, however, if at any time before the payment of the Pipeline Products, (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-2010 Earn Out Payment in 2011, CTC Media is no longer required to file an annual report (xon Form 10-K or any successor form) with the SEC, any remaining Earn Out Payment shall not be evidenced by a certificate made on or other instrument, and (y) does not represent any right other than around March 31 of the right to receive the Earn-Out Payments pursuant to this Agreementrelevant year.

Earn-Out Payments. Subject (a) In addition to Section 10.6, following the earlier of June 1, 2023 Closing Purchase Price and the date that is twelve Deferred Purchase Price, each Seller shall be eligible to receive his Pro Rata Share of one or more earn-out payments (12) months following the date of the First Commercial Sale of Lyvispah (such date, the “Earn-Out Start DatePayments”) upon achievement by the Company of Adjusted EBIT as follows (it being understood that the aggregate Earn-Out Payment paid to the Sellers pursuant to this Agreement shall not exceed $6,160,000 under any circumstances): (i) If the Company achieves $2,000,000 of Adjusted EBIT (the “Year 1 Adjusted EBIT Target”) or more during the period beginning on June 1, 2008 and ending on the last day of the Buyer’s second fiscal quarter of 2009 (such period, “Year 1”), Buyer shall pay to Sellers (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and Payment for Year 1 will be $1,500,000 (the “Year 1 Payment Target”). (ii) fifteen percent If the Company achieves $2,500,000 of Adjusted EBIT (15%the “Year 2 Adjusted EBIT Target”) or more during the period beginning on the first day after the last day of all Net Sales Year 1 and ending on the last day of the Pipeline Products during each Calendar Buyer’s second fiscal quarter of 2010 (such period, “Year (including the Calendar Year during which 2”), the Earn-Out Start Date occursPayment for Year 2 will be $2,000,000 (the “Year 2 Payment Target”); provided, that in the event that the Company did not achieve the Year 1 Adjusted EBIT Target or the Year 2 Adjusted EBIT Target, but the Company’s cumulative Adjusted EBIT for Year 1 and Year 2 is $4,500,000 (the “Year 2 Cumulative Adjusted EBIT Target”) exceeding Thirty Million US Dollars ($30,000,000.00) (each such paymentor more, an “Earn-Out Payment”). Such Earn-Out Payments shall be made no later than forty-five (45) calendar days following the end of each Calendar Quarter. Each such Earn-Out Payment shall be made equal to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have sum of: (Ax) the right to ownYear 1 Payment Target, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and plus (By) the right to determine Year 2 Payment Target (the terms and conditions of the development and Commercialization of the Pipeline Products“Year 2 Cumulative Payment Target”), and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that minus (1z) there is no assurance that Sellers will receive any Earn-Out PaymentPayment previously received for Year 1. (iii) If the Company achieves $3,000,000 of Adjusted EBIT (the “Year 3 Adjusted EBIT Target”) or more during the period beginning on the first day after the last day of Year 2 and ending on the last day of the Buyer’s second fiscal quarter of 2011 (such period, “Year 3”), the Earn-Out Payment for Year 3 shall be $2,500,000 (2the “Year 3 Payment Target”); provided, that in the event that the Company did not achieve the Year 1 Adjusted EBIT Target, the Year 2 Adjusted EBIT Target and/or the Year 3 Adjusted EBIT Target, but the Company’s cumulative Adjusted EBIT for Year 1, Year 2 and Year 3 is $7,500,000 (the “Year 3 Cumulative Adjusted EBIT Target”) neither Buyer nor any Affiliates of Buyer promised or projected any amounts more, an Earn-Out Payment shall be made equal to be received by Sellers with respect of the sum of: (w) the Year 1 Payment Target, plus (x) the Year 2 Payment Target, plus (y) the Year 3 Payment Target (the “Year 3 Cumulative Payment Target”), minus (z) any Earn-Out PaymentPayment previously received for Year 1 and Year 2. (iv) If the Company’s cumulative Adjusted EBIT for Year 1, Year 2 and Sellers have not relied on any statements Year 3 is $7,700,000 (the “Final Adjusted EBIT Target”) or information provided by or on behalf of Buyer or its Affiliates with respect to the likelihood of development or potential sales of the Pipeline Productsmore, (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to an additional Earn-Out Payment shall be made equal to $160,000 (xthe “Final Earn-Out Payment”). (v) shall not be evidenced by a certificate In the event that the Company achieves less than 100% of the Annual Adjusted EBIT Target or other instrumentthe Cumulative Adjusted EBIT Target, and (y) does not represent as applicable, designated for any right other than the right to receive Earn-Out Year, the Earn-Out Payment for such Earn-Out Year shall be adjusted as follows: (1) If the Company achieves Adjusted EBIT during a given Earn-Out Year equal to 70% or more of the applicable Annual Adjusted EBIT Target for such Earn-Out Year, then the Earn-Out Payment for such Earn-Out Year shall be an amount equal to the Annual Payment Target for such Earn-Out Year multiplied by a fraction, the numerator of which is the actual Adjusted EBIT achieved by the Company for such Earn-Out Year, and the denominator of which is the Annual Adjusted EBIT Target for such Earn-Out Year. For example, if the Company’s Adjusted EBIT for Year 2 is $2,000,000 (i.e., 80% of the Year 2 Adjusted EBIT Target), the Earn-Out Payment would be $1,600,000 (i.e., 80% of the Year 2 Payment Target). (2) If the Company achieves cumulative Adjusted EBIT for Year 1 and Year 2 equal to 70% or more of the Year 2 Cumulative Adjusted EBIT Target, then an Earn-Out Payment shall be made in an amount equal to (x) the Year 2 Cumulative Payment Target multiplied by (y) a fraction, the numerator of which is the sum of the actual Adjusted EBIT achieved by the Company for Year 1 and Year 2 and the denominator of which is the Year 2 Cumulative Adjusted EBIT Target minus (z) any Earn-Out Payment previously received for Year 1. For example, if the Company’s Adjusted EBIT for Year 1 and Year 2 is $3,600,000 (i.e., 80% of the Year 2 Cumulative Adjusted EBIT Target), the Earn-Out Payment would be 80% of the Year 2 Cumulative Payment Target less any Earn-Out Payments pursuant previously received for Year 1. (3) If the Company achieves cumulative Adjusted EBIT for Year 1, Year 2 and Year 3 equal to this Agreement70% or more of the Year 3 Cumulative Adjusted EBIT Target, then an Earn-Out Payment shall be made in an amount equal to (x) the Year 3 Cumulative Payment Target multiplied by (y) a fraction, the numerator of which is the sum of the actual Adjusted EBIT achieved by the Company for Year 1, Year 2 and Year 3 and the denominator of which is the Year 3 Cumulative Adjusted EBIT Target minus (z) any Earn-Out Payments previously received for Year 1 and Year 2. For example, if the Company’s Adjusted EBIT for Year 1, Year 2 and Year 3 is $6,000,000 (i.e., 80% of the Year 3 Cumulative Adjusted EBIT Target), the Earn-Out Payment would be 80% of the Year 3 Cumulative Payment Target less any Earn-Out Payments previously received for Year 1 and Year 2. (4) If the Company achieves Adjusted EBIT during a given Earn-Out Year equal to less than 70% but 50% or more of the applicable Annual Adjusted EBIT Target for such Earn-Out Year, then the Earn-Out Payment for such Earn-Out Year shall be an amount equal to: APT – 0.7 – where: APT = Annual Payment Target; AE = actual Adjusted EBIT achieved by the Company for such Earn-Out Year; and AET = Annual Adjusted EBIT Target. (5) If the Company achieves cumulative Adjusted EBIT for Year 1 and Year 2 equal to an amount less than 70% but 50% or more of the Year 2 Cumulative Adjusted EBIT Target, then an Earn-Out Payment shall be made in an amount equal to: CPT2 – 0.7 – - CEP2 where: CPT2 = Year 2 Cumulative Payment Target; ACE = actual cumulative Adjusted EBIT achieved by the Company for Year 1 and Year 2; CET2 = Year 2 Cumulative Adjusted EBIT Target; and CEP2 = Earn-Out Payment received for Year 1. (6) If the Company achieves cumulative Adjusted EBIT for Year 1, Year 2 and Year 3 equal to an amount less than 70% but 50% or more of the Year 3 Cumulative Adjusted EBIT Target, then an Earn-Out Payment shall be made in an amount equal to:

Earn-Out Payments. Subject As additional Purchase Price consideration for the Purchased Interests, if the “Earn-Out Categories” set forth on Schedule B are satisfied under the methodologies set forth on Schedule B, then Buyer shall pay to Section 10.6the Members (in accordance with their Percentage Interests) up to Three Million Dollars ($3,000,000), following the earlier as calculated on Schedule B, which Buyer will pay, or cause to be paid, in Buyer’s sole option: (A) in cash, or (B) a minimum of June 1, 2023 25% in cash and the date that is twelve remainder in shares of Buyer Stock (12using a price per share of $3.75 per share) months following the date of the First Commercial Sale of Lyvispah (such dateshares, the “Earn-Out Start DateBuyer Stock”), provided, that (A) Buyer shall pay to Sellers (i) twelve and one-half percent (12.5%) 11.066% of the first Thirty Million US Dollars cash Earn-Out Payments due to the Members in cash to ▇▇▇▇ ▇▇▇▇▇ ($30,000,000.00) which the Parties agree will be deducted equally from the portion of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of Payments due to the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) (each such payment, an “Earn-Out Payment”). Such Earn-Out Payments shall be made no later than forty-five (45) calendar days following the end of each Calendar Quarter. Each such Earn-Out Payment shall be made to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and Members in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretionrespective Percentage Interests), and (B) the right Buyer shall pay up to determine the terms and conditions 3.334% of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out Payment, (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts to be received by Sellers with respect of any Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect to the likelihood of development or potential sales of the Pipeline Products, (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to cash Earn-Out Payment due to ▇▇▇▇▇▇▇ in cash to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (x) shall not which the Parties agree will be evidenced by a certificate or other instrument, and (y) does not represent any right other than deducted from the right to receive portion of the Earn-Out Payment due to ▇▇▇▇▇▇▇ in accordance with his Percentage Interest). Buyer shall make any cash Earn-Out Payments pursuant no later than the end of Buyer’s fiscal quarter following the fiscal quarter during which the Post-Closing Payment Statement is final, binding, and conclusive upon the Parties. The date on which the cash Earn-Out Payments are actually made under this Agreement is the “Earn-Out Payment Date.” The Earn-Out Buyer Stock, if any, shall be issued in three equal tranches: (i) the first, upon the Earn-Out Payment Date, (ii) the second, on or before the 12-month anniversary of the Earn-Out Payment Date, and (iii) the third, on or before the 24-month anniversary of the Earn-Out Payment Date. Promptly following such issuances, the Company will deliver to this Agreementthe Members evidence from the Company’s transfer agent of the issuance of such Earn-Out Buyer Stock to the Members.

Earn-Out Payments. Subject 3.3.1 In addition to the Closing Payment set forth in Section 10.63.1, following and subject to the conditions set forth in this Section 3.3, Purchaser will make payments (each, an “Earn Out Payment” and collectively, the “Earn Out Payments”) to the Partnership in an amount of up to Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000) in the aggregate (the “Earn Out Maximum”) during the period from the Closing Date through the earlier of June 1October 31, 2023 and 2010 or the date that is twelve (12) months following the date expiration of the First Commercial Sale Measurement Period during which an Earn Out Payment is earned (and subsequently paid) such that the aggregate amount of Lyvispah Earn Out Payments equals the Earn Out Maximum (such date, the “Earn-Earn Out Start DatePeriod”), Buyer shall pay . 3.3.2 The amount of each Earn Out Payment will be equal to Sellers (i) twelve *** for each 12-month period beginning November 1 and one-half percent (12.5%) ending October 31 of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) following year (each such paymentperiod, an a “Earn-Out PaymentMeasurement Period”)***. Such Earn-Purchaser will deliver each Earn Out Payments shall be made no later than forty-five (45) calendar days Payment to the Partnership on January 1 following the end of each Calendar QuarterMeasurement Period. Each such EarnProvided that the economics of the Earn Out Payments are unaffected, the Seller Entities and Purchaser may mutually agree at any point after the Closing to re-define the Measurement Periods for purposes of calculating the Earn Out Payments as commencing on January 1 and ending on December 31 of the following year (except with respect to the final Measurement Period, which will end on October 31 of the applicable year), in which case each Earn Out Payment shall will be made delivered no later than March 31 following the end of each such re-defined Measurement Period (except with respect to Sellers the final Measurement Period, for which the payment date will remain January 1). The amount of any Earn Out Payment will be unlimited, subject only to the Earn Out Maximum. Accordingly, after the aggregate amount of Earn Out Payments equals the Earn Out Maximum, no subsequent Earn Out Payments otherwise capable of being earned during the Earn Out Period will be due and payable. *** 3.3.3 Within sixty (60) days after the end of each quarter during the Earn Out Period, Purchaser will issue a report to the Representative that details for each of those periods (and cumulatively to date for each Measurement Period) the calculation of Gross Margin, Gross Profit, Gross Revenue and Cost of Services (collectively, the “Earn Out Accounting”). Purchaser will pay all reasonable expenses in connection with the preparation of the Earn Out Accounting and determination of the Earn Out Payment under this Section 3.3.3. 3.3.4 Subject to the Earn Out Maximum, any Earn Out Payments (or portion thereof) earned pursuant to the terms of this Section 3.3 will be accompanied by the applicable Earn Out Accounting and will be paid in cash by Purchaser to the Partnership in accordance with written payment instructions received by Purchaser from the Partnership no later than ten (10) days before the Earn Out Payment is due (the “Delivery Instructions”). The Delivery Instructions will specify the address to which a check for such amount will be sent (or appropriate account and other information for purposes of delivery of such amount by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out Payment, (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts to be received by Sellers with respect of any Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect to the likelihood of development or potential sales of the Pipeline Products, (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other than the right to receive the Earn-Out Payments pursuant to this Agreementfunds).

Earn-Out Payments. Subject to Section 10.6, following the earlier of June 1, 2023 and the date that is twelve (12) months following the date of the First Commercial Sale of Lyvispah (such date, the “The Earn-Out Start Date”)Payments, if any is owing pursuant to the terms of this Agreement, shall be paid by Buyer shall pay to Sellers in accordance with the following schedule: (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the The Period 1 Earn-Out Start Date occursPayment (if any) and shall be paid by Buyer on or before April 30, 2023; (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the The Period 2 Earn-Out Start Date occursPayment (if any) exceeding Thirty Million US Dollars ($30,000,000.00) (each such payment, an “Earn-Out Payment”). Such Earn-Out Payments shall be made no later than forty-five paid by Buyer on or before April 30, 2023; (45iii) calendar days following the end of each Calendar Quarter. Each such The Period 3 Earn-Out Payment shall be made paid by Buyer on or before April 30, 2025; and (iv) The Period 4 Earn-Out Payment shall be paid by Buyer on or before April 30, 2025; provided, however, that if the Seller Representative has timely delivered an Objection Notice with respect to the Earn-Out Statement for Earn-Out Period and the Disputed Item identified in the Objection Notice has not been resolved pursuant to Section 2 hereof on or before the date on which the applicable Earn-Out Payment is to be paid pursuant to Section 3(a)(i), (ii), (iii) or (iv), then (y) the Buyer will promptly (and in any event, within 10 days) following conclusion of the Disputed Item Negotiation Period pay to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions undisputed portion of the development and Commercialization of applicable Earn-Out Payment set forth in the Pipeline Products, and any and all sales of Earn-Out Statement (the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any “Interim Earn-Out Payment”) and (z) the Buyer will promptly (and in any event within 30 days) following final resolution of such Disputed Item and final determination of the applicable Earn-Out Payment pursuant to Section 2 hereof, (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts pay to be received by Sellers with respect of any the applicable Earn-Out Payment less the applicable Interim Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect . Each Earn-Out payment shall be paid to the likelihood of development or potential sales of Sellers in accordance with their underlying Participation Percentage (as defined in the Pipeline Products, Purchase Agreement) pursuant to wire instructions delivered by the Seller Representative to the Buyer on not less than three (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other than the right to receive the Earn-Out Payments pursuant to this AgreementBusiness Days’ advance written notice.

Earn-Out Payments. Subject to Section 10.6, following the earlier of June 1, 2023 and the date that is twelve (12a) months following the date of the First Commercial Sale of Lyvispah (such date, the “Earn-Out Start Date”), Buyer shall pay to Sellers (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) (each such payment, an “Earn-Out Payment”). Such Earn-Out Payments shall be made no later than forty-five (45) calendar days following the end of each Calendar Quarter. Each such Earn-Out Payment Opportunity. (i) Following the Closing, Purchaser may be obligated to pay the Seller Parties additional consideration based on the financial performance of Purchaser during an applicable one-year period beginning on January 1, 2026 (the “First Earn-Out Period Commencement Date”) and continuing indefinitely thereafter (the “Aggregate First Earn-Out Period”). (ii) With respect to each one-year period from the First Earn-Out Period Commencement Date through the remainder of the Aggregate First Earn-Out Period (each such one-year period, a “First Earn-Out Period,” and collectively, the “First Earn-Out Periods”), the Seller Parties shall be made to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions paid (or not paid) as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have follows: (A) If Operating Income for a First Earn-Out Period is less than or equal to the right First Earn-Out Period Operating Income Target for such First Earn-Out Period, Purchaser shall not owe any payment to own, operate, use, license, develop the Seller Parties for such First Earn-Out Period (unless a Purchaser Change of Control shall occur and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and payment shall be required under Section 1.8(k)). (B) If Operating Income for a First Earn-Out Period is greater than the right First Earn-Out Period Operating Income Target for such First Earn-Out Period, Purchaser shall pay to determine the terms Seller Parties an amount equal to Thirty Million Dollars ($30,000,000); and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby parties acknowledge and agree that (1) there is no assurance that Sellers will receive any the foregoing First Earn-Out Payment, Payment is solely intended to be a one-time payment obligation of Purchaser as to the First Earn-Out Periods (but does not limit or restrict Purchaser’s obligation to make a payment under Section 1.8(b)) and (2) neither Buyer nor any Affiliates upon payment in accordance with Section 1.8(f) of Buyer promised or projected any amounts to be received by Sellers with respect of any a First Earn-Out PaymentPayment following a First Earn-Out Period for which Operating Income exceeds the First Earn-Out Period Operating Income Target for such First Earn-Out Period, Purchaser shall have no further obligation to make any payment to the Seller Parties pursuant to this Section 1.8(a) for any remaining First Earn-Out Periods. (iii) Notwithstanding anything to the contrary contained herein, the First Earn-Out Period Operating Income Target for any First Earn-Out Period shall be automatically increased to reflect the financial performance of any Competitive Business acquired by Purchaser (each an “Add-On Acquisition”) following the Closing and Sellers prior to the commencement of such First Earn-Out Period (but not, for the avoidance of doubt, during the applicable First Earn-Out Period) (as applicable, a “First Earn-Out Add-On Acquisition Period”). Any such increase shall be calculated on a dollar for dollar basis relative to the Add-On Operating Income of the applicable Competitive Business (that is the subject of the applicable Add-On Acquisition) during the trailing twelve (12) calendar month period ending the first full calendar month immediately preceding the closing of such Add-On Acquisition (“First Earn-Out Add-On TTM Operating Income”). For illustrative purposes only, if the First Earn-Out Add-On TTM Operating Income of a Competitive Business acquired by Purchaser prior to an applicable First Earn-Out Period totaled Ten Million Dollars ($10,000,000), then (i) the applicable First Earn-Out Period Operating Income Target for such First Earn-Out Period would be increased by Ten Million Dollars ($10,000,000), such that if the applicable First Earn-Out Period Operating Income Target would otherwise have been Sixty Million Dollars ($60,000,000), if the applicable Add-On Acquisition had not relied occurred prior to such First Earn-Out Period, then the new First Earn-Out Period Operating Income Target for such First Earn-Out Period would be Seventy Million Dollars ($70,000,000). (iv) Notwithstanding anything to the contrary herein, in the event an Add-On Acquisition occurs during a First Earn-Out Period, then for purposes of this Section 1.8, Operating Income for such First Earn-Out Period during which such Add-On Acquisition occurs shall not include any Operating Income attributable to the acquired Competitive Business that is the subject of such Add-On Acquisition during such First Earn-Out Period calculated on a standalone basis independent of Operating Income attributable to the Business acquired hereunder or any statements or information provided other business acquired by or Purchaser prior to the commencement of the applicable First Earn-Out Period. (b) Second Earn-Out Payment Opportunity. (i) Following the Closing, Purchaser may be obligated to pay the Seller Parties further additional consideration based on behalf the financial performance of Buyer or its Affiliates Purchaser and the occurrence of certain other events described herein during the one-year period from January 1, 2029 through December 31, 2029 (the “Second Earn-Out Period”). Solely with respect to the likelihood Second Earn-Out Period, the Seller Parties shall be paid (or not paid) as follows: (A) If Operating Income for the Second Earn-Out Period is less than the Tier 1 Second Earn-Out Period Operating Income Target, Purchaser shall not owe any payment to the Seller Parties for the Second Earn-Out Period (unless a Purchaser Change of development Control shall occur and payment shall be required under Section 1.8(k)). (B) If Operating Income for the Second Earn-Out Period is equal to or potential sales greater than the Tier 1 Second Earn-Out Period Operating Income Target but less than the Tier 2 Second Earn-Out Period Operating Income Target, Purchaser shall pay to the Seller Parties an amount between Zero Dollars ($0.00) and Fifty Million Dollars ($50,000,000), prorated to the position that such Operating Income falls in the range between the Tier 1 Second Earn-Out Period Operating Income Target and the Tier 2 Second Earn-Out Period Operating Income Target, using linear interpolation. For illustrative purposes only, if the Tier 1 Second Earn-Out Period Operating Income Target equaled Eighty-Five Million Dollars ($85,000,000), the Tier 2 Second Earn-Out Period Operating Income Target equaled One Hundred Million Dollars ($100,000,000) and the actual Operating Income for the Second Earn-Out Period totaled Ninety-Two Million Five Hundred Thousand Dollars ($92,500,000), Purchaser would pay to the Seller Parties an amount equal to Twenty-Five Million Dollars ($25,000,000). (C) If Operating Income for the Second Earn-Out Period is equal to or greater than the Tier 2 Second Earn-Out Period Operating Income Target, Purchaser shall pay to the Seller Parties an amount equal to Fifty Million Dollars ($50,000,000). (ii) Notwithstanding anything to the contrary contained herein, the Tier 1 Second Earn-Out Period Operating Income Target and Tier 2 Second Earn-Out Period Operating Income Target for the Second Earn-Out Period shall be automatically increased to reflect the financial performance of any Add-On Acquisition following the Closing and prior to the commencement of the Pipeline ProductsSecond Earn-Out Period (but not, for the avoidance of doubt, during the Second Earn-Out Period) (3the “Second Earn-Out Add-On Acquisition Period”). Any such increase shall be calculated on a dollar for dollar basis relative to the Add-On Operating Income of the applicable Competitive Business (that is the subject of the applicable Add-On Acquisition) neither Buyer nor during the trailing twelve (12) calendar month period ending the first full calendar month immediately preceding the closing of such Add-On Acquisition (“Second Earn-Out Add-On TTM Operating Income”). For illustrative purposes only, if the Second Earn-Out Add-On TTM Operating Income of a Competitive Business acquired by Purchaser prior to the Second Earn-Out Period totaled Ten Million Dollars ($10,000,000), then (i) the Tier 1 Second Earn-Out Period Operating Income Target would be increased by Ten Million Dollars ($10,000,000), such that if the Tier 1 Second Earn-Out Period Operating Income Target would otherwise have been Eighty Five Million Dollars ($85,000,000), if the applicable Add-On Acquisition had not occurred prior to the Second Earn-Out Period, then the new Tier 1 Second Earn-Out Period Operating Income Target would be Ninety Five Million Dollars ($95,000,000) and (ii) the Tier 2 Second Earn-Out Period Operating Income Target would be increased by Ten Million Dollars ($10,000,000), such that if the Tier 1 Second Earn-Out Period Operating Income Target would otherwise have been One Hundred Million Dollars ($100,000,000), if the applicable Add-On Acquisition had not occurred prior to the Second Earn-Out Period, then the new Tier 1 Second Earn-Out Period Operating Income Target would be One Hundred Ten Million Dollars ($110,000,000). (iii) Notwithstanding anything to the contrary herein, in the event an Add-On Acquisition occurs during the Second Earn-Out Period, then for purposes of this Section 1.8, Operating Income for the Second Earn-Out Period during which such Add-On Acquisition occurs shall not include any Affiliates Operating Income attributable to the acquired Competitive Business that is the subject of Buyer owe such Add-On Acquisition during the Second Earn-Out Period calculated on a standalone basis independent of Operating Income attributable to the Business acquired hereunder or any fiduciary duty other business acquired by Purchaser prior to Sellersthe commencement of the Second Earn-Out Period. (c) For the avoidance of doubt, and notwithstanding anything to the contrary contained herein, in no event shall Purchaser be obligated to make (4i) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to First Earn-Out Payment pursuant to Section 1.8(b) for more than one (x1) shall not be evidenced by a certificate First Earn-Out Period, or other instrument, (ii) aggregate First Earn-Out Payments and (y) does not represent any right other than the right to receive the Second Earn-Out Payments pursuant to both Section 1.8(a) and Section 1.8(b) in excess of Eighty Million Dollars ($80,000,000). (d) For purposes of this Agreement, a “First Earn-Out Payment” means any payment due to the Seller Parties pursuant to Section 1.8(a) and a “Second Earn-Out Payment” means any payment due to the Seller Parties pursuant to Section 1.8(b). Notwithstanding anything herein to the contrary, if a natural Person that is party to a Restrictive Covenant Agreement with Purchaser materially breaches his obligations set forth in such Restrictive Covenant Agreement, such individual shall not be entitled to receive his portion of any First Earn-Out Payment and/or Second Earn-Out Payment amounts paid and distributed by Purchaser to the Seller Parties hereunder; provided, however, for the avoidance of doubt, the Purchaser will still be obligated to pay to the Seller Parties the entirety of the First Earn-Out Payment and/or Second Earn-Out Payment, if payable pursuant to this Section 1.8.

Earn-Out Payments. Subject to Section 10.6, following The Buyer shall pay the earlier remaining sixty percent (60%) of June 1, 2023 and Purchase Price in the date that is twelve Company Shares (12) months following the date of the First Commercial Sale of Lyvispah (such date, the “Earn-Out Start DateShares”) to the Seller as follows: i. If Nice achieves an Earnings Before Interest and Taxes (the “EBIT”) of HK$5,000,000 (the “2020 EBIT Goal”), as evidenced on the 2020 audited financial statements of Nice for fiscal year ended December 31, 2020 audited by the auditor of the Company, the Buyer shall pay to Sellers (i) twelve and one-half percent (12.5%) the Seller or its designee who is an affiliate of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales Seller 30% of the Pipeline Products during each Calendar Year Purchase Price HK$16,200,000 in Company Shares as calculated on: (including 1) the Calendar Year during which average closing price of the Company’s common stock listed on Nasdaq Stock Exchange for the ten (10) trading days prior to 31 December 2020; and (2) the exchange rate published by Bloomberg on 31 December 2020 (the “2020 Earn-Out Start Date occursShares”). ii. If Nice achieves an EBIT of HK$10,000,000 (the “2021 EBIT Goal”), as evidenced on the 2021 audited financial statements of Nice for fiscal year ended December 31, 2021 audited by the auditor of the Company, the Buyer shall pay the Seller or its designee who is an affiliate of the Seller 30% of the Purchase Price HK$16,200,000 in Company Shares as calculated on: (1) the average closing price of the Company’s common stock listed on Nasdaq Stock Exchange for the ten (10) trading days prior to 31 December 2021; and (ii2) fifteen percent the exchange rate published by Bloomberg on 31 December 2021 (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the “2021 Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) (each such payment, an “Earn-Out PaymentShares”). iii. Such Earn-Out Payments shall be made no later than forty-five (45) calendar days following Notwithstanding anything contained herein to the end of each Calendar Quarter. Each such Earn-Out Payment shall be made contrary, if Nice does not achieve its EBIT Goal for a given year, the parties agree to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writinghave forbearance clause. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates amount of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any such year’s Earn-Out PaymentShares shall not be reduced for that year if Nice achieves sixty percent (60%) or above of its given year EBIT Goal. If Nice achieves lower than 60% EBIT Goal for a given year, the amount of such year’s Earn-Out Shares shall be reduced to zero (2) neither 0). Under no circumstances shall the Buyer nor or the Company be entitled to request for any Affiliates return of Buyer promised Company Shares previously issued to the Seller or projected any amounts its designee. iv. The amount of Company Shares to be received by Sellers with respect issued pursuant to subsections (i) and (ii) shall be referred to as “Earn-Out Payments”. The Earn-Out Payments, if required, shall be made to the Seller or its designee in the form of Company Shares no later than thirty (30) calendar days (referred as an “Earn-Out Payment Date”) after the respective end of fiscal year’s audited financial statements are delivered to the Company. Notwithstanding anything contained herein to the contrary, if the issuance of any Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf Shares could cause the total number of Buyer or its Affiliates with respect to the likelihood of development or potential sales Company Shares exceeding 19.99% of the Pipeline Products, (3) neither Buyer nor any Affiliates outstanding number of Buyer owe any fiduciary duty to Sellers, and (4) shares of common stock of the Parties intend Company on the express provisions date of this Agreement to govern their contractual relationship and to supersede any standard (the “19.99% Limit”), the amount of efforts or implied covenant of good faith and fair dealing purchase price that might otherwise exceeds the 19.99% Limit shall be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other than the right to receive the Earn-Out Payments paid in cash in U.S. Dollar pursuant to the exchange rate specified under this Agreementsection 1.1(c)(i) or (ii) accordingly.

Earn-Out Payments. Subject As part of the Purchase Price, the Buyer shall pay to Section 10.6the Shareholders, following an amount equal to the earlier fifty percent (50%) of June 1, 2023 and the date that is pre-tax earnings of the L.R.S. cost center for the twelve (12) months following month period beginning August 1, 1999 and ending July 31, 2000 (the date of the "First Commercial Sale of Lyvispah (such date, the “Earn-Out Start Date”Period), Buyer shall pay not to Sellers (i) twelve and one-half percent (12.5%) of the first Thirty exceed Three Million US Dollars ($30,000,000.00) of Net Sales of 3,000,000), with payment to be made by the Pipeline Products during each Calendar Year (including Buyer to the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) (each such paymentShareholders on or before October 31, an “Earn-Out Payment”)2000. Such Additional Earn-Out Payments shall be made no later than fortypaid by the Buyer to the Seller for each of the next succeeding three (3) twelve month periods in an amount equal to 50% of the pre-five (45) calendar days following tax earnings of the end of each Calendar Quarter. Each Company; provided, that if such payments, when aggregated with the Earn-Out Payment for the First Earn-Out Period shall not exceed Three Million Two Hundred Thousand Dollars ($3,200,000). Payments for each of the succeeding Earn-Out Periods shall be made to Sellers by wire transfer for such period on or before September 30 of immediately available U.S. funds in each such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out Payment, (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts to be received by Sellers with respect of any Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect to the likelihood of development or potential sales of the Pipeline Products, (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authorityyear. The right pre-tax earnings used for the purpose of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other than the right to receive calculating the Earn-Out Payments shall be based upon the earnings of the Company's business operated as a separate cost center (the "LRS Cost Center") subsequent to the sale of Shares contemplated herein and shall include as income the loan fees, origination fees, gain on the sale of retail, wholesale and sub prime loans reduced by operating expenses for the cost center Income and Expense for the purpose of the foregoing, shall not include (a) any of the Buyer's corporate management or overhead charged to the cost center operation, but shall include compensation paid to the Shareholders pursuant to this Agreementtheir Employment Agreements; (b) any interest income or interest expense related to the warehouse line and loans held for sale; (c) any income or expenses associated with the consolidation of the Buyer's San ▇▇▇▇ office with the Company's office, including, but not limited to any wholesale volume related to the Buyer's San ▇▇▇▇ account representatives and the Buyer's Tustin's account representatives; and (d) any additional cost centers or loan production business assigned to the Executive to manage from and after the Closing Date. During the Earn-Out Period, the Buyer covenants and agrees that it will not move or allow existing personnel from the LRS Cost Center to move to any other location or affiliate of Buyer, without the written consent of the Shareholders, which will not be unreasonably withheld. In addition, the Buyer covenants and agrees the during the Earn-Out Period, the Buyer will not transfer any existing business operations or functions from the LRS Cost Center without the written consent of the Shareholders. During the Earn-Out Period, the Shareholders shall have the right to approve or reject any proposed increase in costs allocated to the LRS Cost Center, including, but not limited to increases in employee compensation (exclusive of pension or other employee benefits applicable to employees generally of Buyer), allocation of depreciation and amortization, except with respect to depreciation and amortization applicable to approved capital expenditures for the LRS Cost Center and other cost allocations which may impact the LRS Cost Center.

Earn-Out Payments. Subject 3.3.1 In addition to the Purchase Price set forth in Section 10.63.1, following and subject to the conditions set forth in this Section 3.3, Purchaser will make payments (each, an “Earn Out Payment” and collectively, the “Earn Out Payments”) to the Seller in an amount of up to Thirteen Million Dollars ($13,000,000) in the aggregate (the “Earn Out Maximum”) during the period from the Closing Date through the earlier of June 1July 31, 2023 and the date that is twelve (12) months following the date 2011 or payment of the First Commercial Sale Earn Out Maximum (the “Earn Out Period”). 3.3.2 The aggregate amount of Lyvispah each Earn Out Payment will be equal to ***. The amount of any Earn Out Payment will be unlimited, subject only to the Earn Out Maximum. Accordingly, after the Earn Out Maximum has been paid, no subsequent Earn Out Payments otherwise capable of being earned during the Earn Out Period will be due and payable. 3.3.3 Within thirty (such date30) days after the end of each month during the Earn Out Period, Purchaser will issue a report to the Representative that details for each of those periods (and cumulatively to date for each Measurement Period) the calculation of Revenue, Cost of Services, Operating Expenses, and Operating Profit (collectively, the “Earn-Earn Out Start Date”), Buyer shall pay to Sellers (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) (each such payment, an “Earn-Out PaymentAccounting”). Such Earn-Purchaser will maintain its books and records to be able to calculate or reconstruct an Earn Out Payment. Purchaser will pay all reasonable expenses in connection with the preparation of the Earn Out Accounting and determination of the Earn Out Payment under this Section 3.3.3. 3.3.4 Subject to the Earn Out Maximum, any Earn Out Payments shall (or portion thereof) earned pursuant to the terms of this Section 3.3 will be made no later than forty-five accompanied by the Earn Out Accounting and will be paid in cash by Purchaser to Seller within sixty (4560) calendar days following the end of each Calendar Quarter. Each such Earn-the applicable Measurement Period in accordance with written payment instructions received by Purchaser from Seller no later than ten (10) days before the Earn Out Payment shall is due (the “Delivery Instructions”). The Delivery Instructions will specify the Persons entitled to receive the Earn Out Payment, the portion thereof that each such Person will receive and the address to which a check for such amount will be made to Sellers sent (or appropriate account and other information for purposes of delivery of such amount by wire transfer of immediately available U.S. funds funds). 3.3.5 If within fifteen (15) days after receipt of the Earn Out Accounting and any Earn Out Payment, the Representative delivers written notice to Purchaser that the Seller Entities disagree with the calculation of the Earn Out Payment (the “Disagreement Notice”), then Seller and Purchaser will attempt in good faith to determine mutually the correct amount of the applicable Earn Out Payment. If Seller and Purchaser cannot in good faith mutually determine the amount of the applicable Earn Out Payment within fifteen (15) days after delivery of the Disagreement Notice (or such respective amounts longer period as mutually agreed by Seller and Purchaser), then a reputable regional accounting firm, excluding the firm that represents Purchaser, jointly selected by Seller and Purchaser (the “Independent Firm”), will compute the amount of the Earn Out Payment (the “Earn Out Payment Computation”). The Earn Out Payment Computation will be final, conclusive and binding on the parties to this Agreement. If the amount of the Earn Out Payment calculated under the Earn Out Payment Computation exceeds by more than 1% the amount of the Earn Out Payment calculated by Purchaser under the Earn Out Accounting, then Purchaser will be responsible for the costs of performing the Earn Out Payment Computation. Otherwise, Seller will be responsible for the costs of the Earn Out Payment Computation. If the amount of the Earn Out Payment calculated under the Earn Out Payment Computation exceeds the amount calculated under the Earn Out Accounting, then Purchaser will pay the difference to Seller, plus accrued interest on such difference at the Interest Rate from the date the Earn Out Payment was originally due, in accordance with the Delivery Instructions no later than five (5) days following receipt of the Earn Out Payment Computation. If the amount of the Earn Out Payment Calculated under the Earn Out Payment Computation is less than the amount calculated under the Earn Out Accounting, then Seller will reimburse Purchaser for the difference no later than five (5) days following receipt of the Earn Out Payment Computation. 3.3.6 Purchaser will provide corporate support services in support of the Operation as described in Schedule 3.3.6 (the “Corporate Support Services”)***. If Purchaser fails to provide any of the Corporate Support Services, Seller will provide written notice to Purchaser of such wire instructions as Sellers shall specify in writing. For failure, including a specific description of the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have (Aservice(s) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretionnot provided, and Purchaser will correct such failure within ten (B10) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out Payment, (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts to be received by Sellers with respect of any Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect to the likelihood of development or potential sales of the Pipeline Products, (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authority. The right of Sellers to receive any amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other than the right to receive the Earn-Out Payments pursuant to this Agreementbusiness days following notice thereof.

Earn-Out Payments. Subject to Section 10.6, following the earlier of June 1, 2023 and the date that is twelve (12) months following the date For each of the First Commercial Sale of Lyvispah four calendar years 1997, 1998, 1999 and 2000 (such dateeach, the “an "Earn-Out Start Date”)Year") for which Mechanical Anchor Sales (as hereinafter defined) exceed the Mechanical Anchor Sales for the preceding calendar year, Buyer SST-Canada shall pay to Sellers an additional amount (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) (each such paymenteach, an “"Earn-Out Payment”). Such Earn-Out Payments shall be made ") equal to ten percent of such excess; provided that no later than forty-five (45) calendar days following the end of each Calendar Quarter. Each such Earn-Out Payment shall accrue or be made to Sellers by wire transfer of immediately available U.S. funds in such respective amounts and in accordance with such wire instructions as Sellers shall specify in writing. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11, Buyer and any Affiliates of Buyer shall have (A) the right to own, operate, use, license, develop and otherwise Exploit the Pipeline Products in any way that Buyer and its Affiliates deem appropriate, in their sole discretion, and (B) the right to determine the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether due or not to develop or Commercialize the Pipeline Products, or the indication or indications payable for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out PaymentYear for which the Mechanical Anchor Sales are not more than $6,395,380. For purposes of this section 1.6, "Mechanical Anchor Sales" means the aggregate net revenues (2determined by Buyer in accordance with U.S. generally accepted accounting principles ("GAAP") neither from Buyer's sales reports prepared in the ordinary course of Buyer's business) for sales by Buyer nor any Affiliates and its affiliates (including the Companies) of Buyer promised or projected any amounts to be received Mechanical Anchor Products identified on Schedule 1.6 attached hereto, reduced by Sellers with respect charges for returns of any of such products; provided that Schedule 1.6 may be amended at any time or from time to time by agreement between ▇. ▇▇▇▇▇▇▇▇▇▇ and SST. Mechanical Anchor Sales for calendar year 1996 shall be deemed to have been $6,395,380 (including $5,552,380 by the Companies and $843,000 by SST and its subsidiaries). Buyer shall furnish to ▇. ▇▇▇▇▇▇▇▇▇▇ within forty-five days after the end of each calendar quarter ending on or prior to December 31, 2000, commencing with the calendar quarter ending March 31, 1997, a report showing the Mechanical Anchor Sales for that quarter. Not later than March 31 of the year following each Earn- Out Year, Buyer shall furnish to ▇. ▇▇▇▇▇▇▇▇▇▇ copies of all such sales reports for such Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates with respect to the likelihood of development or potential sales of the Pipeline Products, (3) neither Buyer nor any Affiliates of Buyer owe any fiduciary duty to Sellers, and (4) the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental AuthorityYear. The right of Sellers to receive any amounts with respect to SST-Canada shall make each Earn-Out Payment (x) shall that accrues as provided in this section 1.6 by check or wire transfer in accordance with instructions provided by the respective Sellers entitled thereto not be evidenced by a certificate or other instrument, and (y) does not represent any right other later than March 31 of the right to receive calendar year following the respective Earn-Out Payments pursuant Year to this Agreement.the following parties in the following proportions:

Earn-Out Payments. Subject 3.3.1 As additional consideration for the Specified Assets, Buyer shall pay to Section 10.6Seller with respect to each Calculation Period within the Earn Out Period an amount (each, following an “Earn Out Payment”) equal to: three percent (3%) of all Revenue generated by Buyer from the earlier amount, if any, of June 1small diameter stainless steel pipe and tube (outside diameter of ten inches or less) sold in excess of 3.25 million pounds quarterly, 2023 excluding sales of Seller’s finished goods inventory post-Closing; provided that, the Parties shall review the Earn Out Payments annually (each fourth Calculation Period during the Earn Out Period), and if necessary, adjust up or down the final quarterly Earn Out Payment for each year during the Earn Out Period to make certain the aggregate of the Earn Out Payments for each year during the Earn Out Period is equal to three percent (3%) of all Revenue generated by Buyer from the amount, if any, of small diameter stainless steel pipe and tube (outside diameter of ten inches or less) sold in excess of 13.0 million pounds annually. Notwithstanding the foregoing, if at the end of the Earn Out Period, Buyer has paid Seller Earn Out Payments totaling less than $3,000,000, in the aggregate, then Buyer shall pay Seller a “true-up” payment equal to the difference between $3,000,000 and the date that is twelve (12) months following aggregate of the Earn Out Payments previously paid to Seller. 3.3.2 Procedures Applicable to Determination of the Earn Out Payments. 3.3.2.1 On or before the date which is twenty (20) days after the last day of the First Commercial Sale of Lyvispah each Calculation Period (each such date, the an “Earn-Earn Out Start Calculation Delivery Date”), Buyer shall pay prepare and deliver to Sellers Seller a written statement (i) twelve and one-half percent (12.5%) of the first Thirty Million US Dollars ($30,000,000.00) of Net Sales of the Pipeline Products during in each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) and (ii) fifteen percent (15%) of all Net Sales of the Pipeline Products during each Calendar Year (including the Calendar Year during which the Earn-Out Start Date occurs) exceeding Thirty Million US Dollars ($30,000,000.00) (each such paymentcase, an “Earn-Earn Out Calculation Statement”) setting forth in reasonable detail its determination of Revenue for the applicable Calculation Period and its calculation of the resulting Earn Out Payment (in each case, an “Earn Out Calculation”). 3.3.2.2 Seller shall have twenty (20) days after receipt of the Earn Out Calculation Statement for each Calculation Period (in each case, the “Review Period”) to review the Earn Out Calculation Statement and the Earn Out Calculation set forth therein. During the Review Period, Seller and its Representatives shall have the right to inspect the Company’s books and records during normal business hours at the Company’s offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of Revenue and the resulting Earn Out Payment. Prior to the expiration of the Review Period, Seller may object to the Earn Out Calculation set forth in the Earn Out Calculation Statement for the applicable Calculation Period by delivering a written notice of objection (an “Earn Out Calculation Objection Notice”)) to Buyer. Such Earn-Any Earn Out Payments Calculation Objection Notice shall specify the items in the applicable Earn Out Calculation disputed by Seller and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute. If Seller fails to deliver an Earn Out Calculation Objection Notice to Buyer prior to the expiration of the Review Period, then the Earn Out Calculation set forth in the Earn Out Calculation Statement shall be made no later than forty-five (45) calendar days following final and binding on the end of each Calendar Quarter. Each such Earn-parties hereto, and the Earn Out Payment shall be made to Sellers by wire transfer of immediately available U.S. funds in such respective amounts due and in accordance with such wire instructions as Sellers shall specify in writingpayable. For the avoidance of doubt, upon the Closing and thereafter, subject to Section 7.11If Seller timely delivers an Earn Out Calculation Objection Notice, Buyer and any Affiliates Seller shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of Buyer shall have (A) the right to own, operate, use, license, develop Revenue and otherwise Exploit the Pipeline Products in any way that Earn Out Payment for the applicable Calculation Period. If Buyer and its Affiliates deem appropriateSeller are unable to reach agreement within thirty (30) days after such an Earn Out Calculation Objection Notice has been given, in their sole discretion, and (B) all unresolved disputed items shall be promptly referred to the right Independent Accountants. The Independent Accountants shall be directed to determine render a written report on the terms and conditions of the development and Commercialization of the Pipeline Products, and any and all sales of the Pipeline Products, including the determination of whether or not to develop or Commercialize the Pipeline Products, or the indication or indications for which the Pipeline Products may be developed or Commercialized. Sellers hereby acknowledge and agree that (1) there is no assurance that Sellers will receive any Earn-Out Payment, (2) neither Buyer nor any Affiliates of Buyer promised or projected any amounts to be received by Sellers with respect of any Earn-Out Payment, and Sellers have not relied on any statements or information provided by or on behalf of Buyer or its Affiliates unresolved disputed items with respect to the likelihood of development or potential sales applicable Earn Out Calculation as promptly as practicable, but in no event greater than thirty (30) days after such submission to the Independent Accountants, and to resolve only those unresolved disputed items set forth in the Earn Out Calculation Objection Notice. If unresolved disputed items are submitted to the Independent Accountants, Buyer and Seller shall each furnish to the Independent Accountants such work papers, schedules and other documents and information relating to the unresolved disputed items as the Independent Accountants may reasonably request. The Independent Accountants shall resolve the disputed items based solely on the applicable definitions and other terms in this Agreement and the presentations by Buyer and Seller, and not by independent review. The resolution of the Pipeline Products, (3) neither Buyer nor any Affiliates dispute and the calculation of Buyer owe any fiduciary duty to Sellers, Revenue that is the subject of the applicable Earn Out Calculation Objection Notice by the Independent Accountants shall be final and (4) binding on the Parties intend the express provisions of this Agreement to govern their contractual relationship and to supersede any standard of efforts or implied covenant of good faith and fair dealing that might otherwise be imposed by any court or other Governmental Authorityparties hereto. The right fees and expenses 4 of Sellers the Independent Accountants shall be borne by Seller and Buyer in proportion to receive any the amounts with respect to Earn-Out Payment (x) shall not be evidenced by a certificate or other instrument, and (y) does not represent any right other than which their respective calculations of Revenue differ from Revenue as finally determined by the right to receive the Earn-Out Payments pursuant to this AgreementIndependent Accountants.