Common use of Earnout Clause in Contracts

Earnout. (a) Subject to the terms and conditions of this Section 2.4, the Buyer may become obligated to pay an Earn-Out Payment to Sellers as provided in Schedule 2.4 of this Agreement (the “Earnout Principles”). The Earnout Principles are hereby incorporated by reference into this Agreement and shall be deemed to be included in and a part of this Agreement. (b) Not less than ninety (90) days following the Earnout Date (as defined in the Earnout Principles), the Buyer shall prepare and deliver to the Sellers’ Representative a statement (an “Earnout Statement”) that sets forth in reasonable detail its calculation of the Target Revenue Percentages (as defined in the Earnout Principles) for the Earnout Period. In the event S▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (i) dies during the Earnout Period, or (ii) is no longer employed by the Buyer during the Earnout Period then, in the case of clause (i), B▇▇▇▇ ▇▇▇▇▇▇▇▇, and, in the case of clause (ii), the Sellers’ Representative, shall, as applicable, be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records relating to the determination of the Earnout, subject to the proviso in the following sentence. Sellers’ Representative and its accountants shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records used in the preparation of the Earnout Statement, provided that the Sellers’ Representative and its accountants shall not have access to any such books or records if the provision thereof would, in the good faith judgment of the Buyer, (i) result in the loss of, or jeopardize, the attorney-client, attorney work product or any other similar legal privilege, (ii) result in a breach of the terms and conditions of any Contract to which the Company or any Affiliate thereof is a party or otherwise bound, or (iii) violate applicable Law. If the Sellers’ Representative has any objections to any Earnout Statement, the Sellers’ Representative shall deliver to the Buyer a written statement setting forth its objections thereto (an “Earnout Objections Statement”) with reasonable supporting detail as to any such disputed items. If an Earnout Objections Statement is not delivered to the Buyer within thirty (30) days after delivery of the Earnout Statement to the Sellers’ Representative, such Earnout Statement shall be final, binding and non-appealable on the parties hereto and all other Persons. If an Earnout Objections Statement is timely delivered, the Sellers’ Representative and the Buyer shall negotiate in good faith to resolve any such objections set forth therein, but if they do not reach a final resolution within thirty (30) days after the delivery of such Earnout Objections Statement, the Sellers’ Representative and the Buyer shall submit such dispute to an independent regionally recognized public accounting firm agreed upon by Buyer and Sellers’ Representative in writing (who shall not have any material relationship with the Sellers or Buyer or its Subsidiaries) (the “Accounting Firm”), provided that if the Sellers’ Representative and the Buyer cannot agree upon the Accounting Firm promptly following the end of the thirty (30) day period after the delivery of an Earnout Objections Statement, either one of them may request that the New York City office of the American Arbitration Association (the “AAA”) select the Accounting Firm (who shall not have any material relationship with the Sellers or the Buyer or its Subsidiaries). The Accounting Firm shall make a determination of any matters submitted to it pursuant to the terms hereof, and any such determination made by the Accounting Firm shall be final, conclusive and binding on all parties hereto and all other Persons. The parties will cooperate with the Accounting Firm during the term of its engagement, including by providing or causing to be provided to the Accounting Firm such information or documentation as the Accounting Firm may reasonably request If the Accounting Firm is engaged pursuant to the terms hereof, the parties shall enter into a customary engagement letter with such Accounting Firm, and the Sellers, on the one hand, and the Buyer, on the other hand, shall each agree to pay one-half of the fees and expenses of such Accounting Firm (and, if applicable, the AAA). (c) No later than the date that is ten (10) Business Days following the final and conclusive determination of the Target Revenue Percentages for the Earnout Period pursuant to Section 2.4(b) hereof, if such Target Revenue Percentages shall exceed the thresholds for the making of any payment in respect of such Earnout Period pursuant to the Earnout Principles, and subject to the terms set forth in this Agreement (including the terms set forth in Article VI hereof), the Buyer shall pay, or cause to be paid, to the Sellers the amount required to be paid by the Buyer to the Sellers pursuant to Section 2.4(a) hereof, such payment to be made by wire transfer of immediately available funds to such account or accounts as the Sellers may designate to the Buyer in writing, such payments to be made to each Seller based on the Pro Rata Share thereof. The right of the Sellers to receive any payment pursuant to the Earnout Principles is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Sellers only the rights of a general unsecured creditor of the Buyer under applicable Law), (ii) will not be represented by any form of certificate or instrument, (iii) does not give the Sellers’ Representative, the Sellers or any other Person any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Buyer’s equity securities, and (iv) is not redeemable. (d) After the Closing Date, the Buyer shall: (i) cause the Company to maintain books and records for the Company in a manner intended to enable the Buyer to accurately determine the amount of Target Revenue Percentages during the Earnout Period, and (ii) not, directly or indirectly, take any action in bad faith for the purpose of circumventing or reducing the Earn-Out Payment. (e) All amounts paid by the Buyer pursuant to Section 2.4(a) shall be treated by the parties as an adjustment to the purchase price paid by the Buyer hereunder in respect of the Interests acquired pursuant to the terms hereof. (f) For the avoidance of doubt, the obligation of Buyer to make any payments pursuant to Section 2.4 shall not be contingent or conditioned upon the continuing employment or service of any Person (including the Sellers).

Earnout. (a) Subject The Shareholders may be entitled to additional consideration, in the form of the Earnout Consideration, based on the final 2H12 Revenue as further described in this Section 2.13. It is the mutual intent of the parties that the 2H12 Revenue target will be achieved and the applicable portion of the Earnout Consideration be promptly paid and delivered to the terms Shareholders in accordance with this Agreement. To this end, the parties agree to cooperate in good faith in conjunction with the final determination of the 2H12 Revenue hereunder and conditions of any corresponding disagreements arising in connection with such a determination as further described in this Section 2.4, the Buyer may become obligated to pay an Earn-Out Payment to Sellers as provided in Schedule 2.4 of this Agreement (the “Earnout Principles”)2.13. The Earnout Principles are hereby incorporated by reference into this Agreement Purchaser will provide the Shareholder Representative with written monthly updates, no later than the 10th Business Day of the following month, of the Company's 2H12 Revenue and shall be deemed to be included will provide such additional information as the Shareholder Representative may reasonably request in and a part of this Agreementconnection therewith. (b) Not less As soon as possible after December 31, 2012, but in no event later than ninety (90) days following the Earnout Date (as defined in the Earnout Principles)February 15, 2013, the Buyer Purchaser shall prepare have prepared and deliver delivered to the Sellers’ Shareholder Representative a statement (an “Earnout Statement”) that sets forth in reasonable detail its the calculation of 2H12 Revenue. During the Target Revenue Percentages thirty (as defined in 30) day period following delivery of the Earnout Principles) for calculation of 2H12 Revenue, Purchaser shall provide the Earnout Period. In the event S▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (i) dies during the Earnout Period, or (ii) is no longer employed by the Buyer during the Earnout Period then, in the case of clause (i), B▇▇▇▇ ▇▇▇▇▇▇▇▇, and, in the case of clause (ii), the Sellers’ Shareholder Representative, shallat its request, as applicable, be permitted with reasonable access during normal business hours upon reasonable advance notice to review the Company’s employees, agreements, books and records relating to the determination of the Earnout, subject to Surviving Corporation and the proviso in work papers used by the following sentence. Sellers’ Representative and its accountants shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records used Purchaser in the preparation of the Earnout Statement, provided that the Sellers’ Representative and its accountants shall not have access to any such books or records if the provision thereof would, in the good faith judgment calculation of the Buyer2H12 Revenue, (i) result in the loss ofincluding by electronic means, or jeopardize, the attorney-client, attorney work product or any other similar legal privilege, (ii) result in a breach of the terms and conditions of any Contract to which the Company or any Affiliate thereof is a party or otherwise bound, or (iii) violate applicable Law. If the Sellers’ Representative has any objections to any Earnout Statement, the Sellers’ Representative shall deliver to the Buyer a written statement setting forth its objections thereto (an “Earnout Objections Statement”extent available) with reasonable supporting detail as provided, however, that Purchaser shall have no obligation to any such disputed items. If an Earnout Objections Statement is not delivered provide or make available to the Buyer Shareholder Representative any privileged communications. The Purchaser's calculation of 2H12 Revenue shall be final and binding on the Parties unless, within thirty (30) days after delivery of the Earnout Statement thereof to the Sellers’ Shareholder Representative, such Earnout Statement shall be final, binding and non-appealable on the parties hereto and all other PersonsShareholder Representative delivers to the Purchaser a dispute notice specifying in reasonable detail the reason for the dispute (a "Revenue Dispute Notice"). If an Earnout Objections Statement is timely deliveredAfter delivery of a Revenue Dispute Notice, the Sellers’ Shareholder Representative and the Buyer Purchaser shall promptly negotiate in good faith with respect to resolve any such objections set forth thereinthe subject of the Revenue Dispute Notice, but and if they do not are unable to reach an agreement within fifteen (15) days after delivery by the Shareholder Representative of the Revenue Dispute Notice, the dispute shall be submitted to the Independent Accounting Firm for resolution. The Independent Accounting Firm shall be directed to issue a final resolution and binding decision within thirty (30) days after of submission of the delivery Revenue Dispute Notice to the Independent Accounting Firm, as to the issues of such Earnout Objections Statement, disagreement referred to in the Sellers’ Representative Revenue Dispute Notice and not resolved by the Purchaser and the Buyer shall submit such dispute to an independent regionally recognized public accounting firm agreed upon by Buyer and Sellers’ Representative in writing (who shall not have any material relationship with the Sellers or Buyer or its Subsidiaries) (the “Accounting Firm”)Shareholder Representative, provided that if that, in no event shall 2H12 Revenue as determined by the Sellers’ Representative and the Buyer cannot agree upon the Independent Accounting Firm promptly following be less than Purchaser's calculation of 2H12 Revenue nor more than the end Shareholder Representative calculation of 2H12 Revenue set forth in the Revenue Dispute Notice. The decision of the thirty (30) day period after the delivery of an Earnout Objections Statement, either one of them may request that the New York City office of the American Arbitration Association (the “AAA”) select the Accounting Firm (who shall not have any material relationship with the Sellers or the Buyer or its Subsidiaries). The Accounting Firm shall make a determination of any matters submitted to it pursuant to the terms hereof, and any such determination made by the Independent Accounting Firm shall be final, conclusive and binding on all parties hereto and all other Personsthe Parties. The parties will cooperate with the Accounting Firm during the term of its engagement, including by providing or causing to be provided to the Accounting Firm such information or documentation as the Accounting Firm may reasonably request If the Accounting Firm is engaged pursuant to the terms hereof, the parties shall enter into a customary engagement letter with such Accounting Firm, and the Sellers, on the one hand, and the Buyer, on the other hand, shall each agree to pay one-half of the fees and expenses of such the Independent Accounting Firm will be borne by the Purchaser and the Shareholder Representative (andon behalf of the Shareholders) in inverse proportion to the relative amounts of the disputed amount determined to be for the account of the Purchaser and the Shareholders, if applicable, respectively. The 2H12 Revenue finally determined under this Section 2.13 shall be referred to as the AAA)"Final 2H12 Revenue." (c) No By the later than of thirty one (31) days after the date that is ten (10Purchaser’s delivery to the Shareholder Representative of the Purchaser’s calculation of 2H12 Revenue in accordance with Section 2.13(b) or, in the event the Shareholder Representative delivers a Revenue Dispute Notice, two Business Days following after the final and conclusive determination of the Target Revenue Percentages for the Earnout Period pursuant to Section 2.4(b) hereofFinal 2H12 Revenue, if such Target Revenue Percentages shall exceed the thresholds for the making of any payment in respect of such Earnout Period pursuant subject to the Earnout PrinciplesPurchaser's Set-Off rights in Section 9.4 herein, and subject to confirmation of the terms Paying Agent’s receipt and acceptance of duly executed Exchange Documents from a Shareholder, the Purchaser shall cause to be delivered (in the manner described in this paragraph (c)) to each Shareholder who is entitled to receive Earnout Consideration pursuant to Section 2.2 herein such Shareholder's Pro Rata Share of the portion of the Earnout Consideration earned pursuant to the calculations set forth in this Agreement (including i)-(iii) below (the terms set forth in Article VI hereof“Earnout Amount”), which shall be paid first from the Buyer shall pay, or cause to be paid, Earnout Cash Consideration and then from the Earnout Shares Consideration to the Sellers extent the amount required Earnout Amount exceeds the Earnout Cash Consideration. With respect to be paid by delivery of the Buyer Earnout Amount, subject to Purchaser’s receipt of confirmation of the Sellers pursuant to Section 2.4(aPaying Agent’s receipt and acceptance of duly executed Exchange Documents from a Shareholder, the Purchaser shall (I) hereof, such payment to be made by wire transfer of immediately available funds in the amount of the relevant portion of the Earnout Cash Consideration to the Paying Agent for distribution to such account or accounts as the Sellers may designate to the Buyer Shareholder in writing, accordance with such payments to be made to each Seller based on the Shareholder's Pro Rata Share thereof. The right of such Earnout Cash Consideration, and (II) cause Parent to issue and deliver to such Shareholder such Shareholder's Pro Rata Share of the Sellers to receive any payment pursuant to relevant portion of the Earnout Principles Shares Consideration. (i) If the Final 2H12 Revenue is solely a contractual right and is not a security for purposes of any federal equal to or state securities laws (and shall confer upon greater than $10,580,000, the Sellers only Earnout Amount will be the rights of a general unsecured creditor full amount of the Buyer under applicable Law), Earnout Consideration. (ii) If the Final 2H12 Revenue is less than $10,580,000 but greater than $6,080,000, the Earnout Amount will not be represented the Earnout Consideration multiplied by any form a fraction, the numerator of certificate or instrument, which is the Final 2H12 Revenue minus $6,080,000 and the denominator of which is $4,500,000. (iii) does not give If the Sellers’ RepresentativeFinal 2H12 Revenue is equal to or less than $6,080,000, the Sellers or any other Person any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common Shareholders will be entitled to holders of the Buyer’s equity securities, and (iv) is not redeemableno Earnout Consideration under this Agreement. (d) After With respect to earnout payments under the Closing DateSpecial Compensation Plan, the Buyer shall: Shareholder Representative shall administer the funds remaining in the SCP Account ("SCP Fund Balance") as follows: (i) cause If the Company Final 2H12 Revenue is equal to maintain books and records for or greater than $10,580,000, the Company SCP Fund Balance shall be distributed to the eligible plan participants in a manner intended to enable accordance with their respective interests in the Buyer to accurately determine SCP Fund Balance. (ii) If the Final 2H12 Revenue is less than $10,580,000 but greater than $6,080,000, the amount of Target the SCP Fund Balance distributed to the eligible plan participants in accordance with their respective interests in the SCP Fund Balance shall be an amount equal to the SCP Fund Balance multiplied by a fraction, the numerator of which is the Final 2H12 Revenue Percentages during minus $6,080,000 and the Earnout Perioddenominator of which is $4,500,000. The remaining portion of the SCP Fund Balance will be distributed to the Shareholders in accordance with their Pro Rata Share. (iii) If the Final 2H12 Revenue is equal to or less than $6,080,000, and (ii) not, directly or indirectly, take any action the SCP Fund Balance will be distributed to the Shareholders in bad faith for the purpose of circumventing or reducing the Earn-Out Paymentaccordance with their Pro Rata Share. (e) All amounts paid Any Earnout Shares Consideration payable hereunder shall bear such restrictive legends as may be reasonably required by the Buyer pursuant to Section 2.4(a) shall be treated by the parties as an adjustment to the purchase price paid by the Buyer hereunder in respect of the Interests acquired pursuant to Parent’s legal counsel and transfer agent, consistent with the terms hereofof this Agreement and the Transaction Documents. (f) For the avoidance of doubt, the obligation of Buyer to make any payments pursuant to Section 2.4 shall not be contingent or conditioned upon the continuing employment or service of any Person (including the Sellers).

Earnout. (a) Subject If EBITDA for Target operating as a wholly-owned subsidiary of Buyer for the fiscal year ending December 31, 2010 is equal to the terms and conditions of this Section 2.4or greater than Thirty-Five Million Dollars ($35,000,000), the Buyer may become obligated to pay an Earn-Out Payment shall issue to Sellers as provided in Schedule 2.4 accordance with the percentages set forth in Exhibit A attached hereto a number of this Agreement shares of Buyer Common Stock (the “Earnout PrinciplesShares”)) equal to Ten Million Dollars ($10,000,000) divided by the Earnout Stock Price. The In no event, however, shall the aggregate number of Earnout Principles are hereby incorporated by reference into this Agreement and Shares exceed 19.9% of the Buyer’s outstanding common shares. In such event the aforesaid 19.9% would limit the amount of Earnout otherwise payable to Sellers, such dollar amount of Earnout above the 19.9% which Sellers would otherwise receive in Earnout Shares shall be deemed payable in cash to Sellers. No fractional shares of Buyer Common Stock shall be included issued, and in and a part of this Agreementlieu thereof any fractional Earnout Shares shall be rounded up to the nearest whole Earnout Share. (b) Not less than ninety Within five (905) days following receipt by Buyer of its audited financial statements for the Earnout Date (as defined fiscal year ending December 31, 2010, but in the Earnout Principles)no event later than April 15, the 2011, Buyer shall prepare and deliver to the Sellers’ Representative a statement (an “Earnout Statement”) that sets forth in reasonable detail its calculation of the Target Revenue Percentages (as defined in the Earnout Principles) for the Earnout Period. In the event S▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (i) dies during the Earnout Period, or (ii) is no longer employed by the Buyer during the Earnout Period then, in the case of clause (i), B▇▇▇▇ ▇▇▇▇▇▇▇▇, and, in the case of clause (ii), the Sellers’ Representative, shall, as applicable, be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records relating to the determination of the Earnout, subject to the proviso in the following sentence. Sellers’ Representative and its accountants shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records used in the preparation of the Earnout Statement, provided that the Sellers’ Representative and its accountants shall not have access to any such books or records if the provision thereof would, in the good faith judgment of the Buyer, (i) result in the loss of, or jeopardize, the attorney-client, attorney work product or any other similar legal privilege, (ii) result in a breach of the terms and conditions of any Contract to which the Company or any Affiliate thereof is a party or otherwise bound, or (iii) violate applicable Law. If the Sellers’ Representative has any objections to any Earnout Statement, the Sellers’ Representative shall deliver to the Buyer a written statement setting forth its objections thereto (an “Earnout Objections Statement”) with reasonable supporting detail as to any such disputed items. If an Earnout Objections Statement is not delivered to the Buyer within thirty (30) days after delivery of the Earnout Statement to the Sellers’ Representative, such Earnout Statement shall be final, binding and non-appealable on the parties hereto and all other Persons. If an Earnout Objections Statement is timely delivered, the Sellers’ Representative and the Buyer shall negotiate in good faith to resolve any such objections set forth therein, but if they do not reach a final resolution within thirty (30) days after the delivery of such Earnout Objections Statement, the Sellers’ Representative and the Buyer shall submit such dispute to an independent regionally recognized public accounting firm agreed upon by Buyer and Sellers’ Representative in writing (who shall not have any material relationship with the Sellers or Buyer or its Subsidiaries) report (the “Accounting FirmEBITDA Report”) showing the computation of EBITDA for the fiscal year ending December 31, 2010. The EBITDA Report shall be based upon the December 31, 2010 audited financial statements of Target. (c) Buyer shall issue the Earnout Shares to Sellers within five (5) Business Days after final determination of EBITDA for the fiscal year ending December 31, 2010. The final determination of EBITDA shall be accomplished in accordance with subsections (d), provided that if the Sellers’ Representative (e) and the Buyer cannot agree upon the Accounting Firm promptly following the end of (f) below. (d) During the thirty (30) day period after following delivery of the EBITDA Report, Buyer shall permit Sellers and Sellers’ accountants, upon reasonable notice at a mutually agreed upon time during normal business hours, to have full access to the books, records, accountants and personnel of Buyer and to make such inspections and copies of such books and records as they may reasonably request, from time to time to verify the amounts included in the EBITDA Report. Any such EBITDA Report shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers’ Representative shall have given written notice of disagreement (an “Earn-Out Dispute Notice”), to Buyer prior to such date. Any Earn-Out Dispute Notice shall specify in reasonable detail the nature of any disagreement so asserted. During the twenty (20) day period following the delivery of an Earnout Objections Statement, either one of them may request that the New York City office of the American Arbitration Association (the “AAA”) select the Accounting Firm (who shall not have any material relationship with the Sellers or the Buyer or its Subsidiaries). The Accounting Firm shall make a determination of any matters submitted to it pursuant to the terms hereof, and any such determination made by the Accounting Firm shall be final, conclusive and binding on all parties hereto and all other Persons. The parties will cooperate with the Accounting Firm during the term of its engagement, including by providing or causing to be provided to the Accounting Firm such information or documentation as the Accounting Firm may reasonably request If the Accounting Firm is engaged pursuant to the terms hereof, the parties shall enter into a customary engagement letter with such Accounting Firm, and the Sellers, on the one hand, and the Buyer, on the other hand, shall each agree to pay one-half of the fees and expenses of such Accounting Firm (and, if applicable, the AAA). (c) No later than the date that is ten (10) Business Days following the final and conclusive determination of the Target Revenue Percentages for the Earnout Period pursuant to Section 2.4(b) hereof, if such Target Revenue Percentages shall exceed the thresholds for the making of any payment in respect of such Earnout Period pursuant to the Earnout Principles, and subject to the terms set forth in this Agreement (including the terms set forth in Article VI hereof), the Buyer shall pay, or cause to be paid, to the Sellers the amount required to be paid by the Buyer to the Sellers pursuant to Section 2.4(a) hereof, such payment to be made by wire transfer of immediately available funds to such account or accounts as the Sellers may designate to the Buyer in writing, such payments to be made to each Seller based on the Pro Rata Share thereof. The right of the Sellers to receive any payment pursuant to the Earnout Principles is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Sellers only the rights of a general unsecured creditor of the Buyer under applicable Law), (ii) will not be represented by any form of certificate or instrument, (iii) does not give the Sellers’ Representative, the Sellers or any other Person any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Buyer’s equity securities, and (iv) is not redeemable. (d) After the Closing Date, the Buyer shall: (i) cause the Company to maintain books and records for the Company in a manner intended to enable the Buyer to accurately determine the amount of Target Revenue Percentages during the Earnout Period, and (ii) not, directly or indirectly, take any action in bad faith for the purpose of circumventing or reducing the Earn-Out PaymentDispute Notice, Sellers’ Representative and Buyer shall seek in good faith to resolve any differences which they may have with respect to the matters specified in such Earn-Out Dispute Notice. (e) All amounts paid by If, at the end of such twenty (20) day period, Sellers’ Representative and Buyer pursuant have not so resolved such differences, Sellers’ Representative and Buyer shall submit the dispute for resolution to Section 2.4(aPKF Texas in the Houston, Texas office (the “Independent Accounting Firm”) shall be treated by the parties as an adjustment for review and resolution of any and all matters which remain in dispute and which were properly included in such Earn-Out Dispute Notice. Each of Buyer, Target and Sellers hereby represents and warrants to the purchase price paid by other that it has no relationship with the Buyer hereunder in respect of the Interests acquired pursuant to the terms hereofIndependent Accounting Firm. (f) For The Independent Accounting Firm shall be engaged by Sellers’ Representative and Buyer within ten (10) days following the avoidance expiration of doubtsuch twenty (20) day period. Promptly, but not later than twenty (20) days after acceptance of this appointment, the obligation Independent Accounting Firm shall determine those items in dispute and will render its report as to its resolution of such terms and resulting calculations of EBITDA for the fiscal year ending December 31, 2010. In determining each disputed item, the Independent Accounting Firm may not assign a value to such item greater than the greatest value for such item claimed by either party or less than the lowest value for such term claimed by either party. Sellers’ Representative and Buyer to make any payments pursuant to Section 2.4 shall not cooperate with the Independent Accounting Firm in making its determination and such determination shall be contingent or conditioned conclusive and binding upon the continuing employment or service of parties. The losing party (as defined below) in any Person such arbitration shall pay all costs and fees (including reasonable attorneys’ fees and expenses) related to such determination by the Independent Accounting Firm, including without limitation, the costs relating to any negotiations with the Independent Accounting Firm with respect to the terms and conditions of such Independent Accounting Firm’s engagement. For purposes of this Section 2.3, as between Sellers’ Representative and Buyer, the “losing party” in any such determination shall mean the party whose EBITDA for the fiscal year ending December 31, 2010 (as set forth in the EBITDA Report, in the case of Buyer, or in an Earn Out Dispute Notice, in the case of Sellers’ Representative), is farthest from the calculation of EBITDA for the fiscal year ending December 31, 2010, as determined by the Independent Accounting Firm. (g) Buyer shall have no right to offset the Earnout Shares against any sum that may be due or is alleged to be due by Sellers to Buyer or the Acquired Companies.

Earnout. (a) Subject to the terms 2.4.1 As promptly as practicable, and conditions of this Section 2.4, the Buyer may become obligated to pay an Earn-Out Payment to Sellers as provided in Schedule 2.4 of this Agreement (the “Earnout Principles”). The Earnout Principles are hereby incorporated by reference into this Agreement and shall be deemed to be included in and a part of this Agreement. (b) Not less than any event within ninety (90) days following each of the Earnout Date (as defined in the Earnout Principles)fiscal years ended December 31, the 2013, 2014 and 2015, Buyer shall prepare and will deliver to the Sellers’ Representative Members a statement (an “Earnout Statement”) that sets written notice setting forth in reasonable detail its Buyer’s calculation of the Target Revenue Percentages (as defined in the Earnout Principles) for the Earnout Period. In the event S▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (i) dies during the Earnout Period, or (ii) is no longer employed by the Buyer during the Earnout Period thenActual EBITDA, in the case of clause (i)the fiscal years ended December 31, B▇▇▇▇ ▇▇▇▇▇▇▇▇2013 and 2014, andand Actual EBITDA and Actual Cumulative EBITDA, in the case of clause the fiscal year ended December 31, 2015 (iieach, an “EBITDA Notice”). Upon receipt of an EBITDA Notice, the Sellers’ Representative, shall, as applicable, Members and their Representatives shall be permitted given reasonable access during normal business hours upon reasonable advance notice to review all of the Company’s books and records of the Company relating to the determination of the Earnout, subject to the proviso in the following sentence. Sellers’ Representative and its accountants such notice. 2.4.2 The Members shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records used in the preparation of the Earnout Statement, provided that the Sellers’ Representative and its accountants shall not have access to any such books or records if the provision thereof would, in the good faith judgment of the Buyer, (i) result in the loss of, or jeopardize, the attorney-client, attorney work product or any other similar legal privilege, (ii) result in a breach of the terms and conditions of any Contract to which the Company or any Affiliate thereof is a party or otherwise bound, or (iii) violate applicable Law. If the Sellers’ Representative has any objections to any Earnout Statement, the Sellers’ Representative shall deliver to the Buyer a written statement setting forth its objections thereto (an “Earnout Objections Statement”) with reasonable supporting detail as to any such disputed items. If an Earnout Objections Statement is not delivered to the Buyer within thirty (30) days after delivery Business Days following receipt of an EBITDA Notice to review it and to notify Buyer in writing if the Members dispute any item or amount set forth on such EBITDA Notice, specifying the reasons therefor in reasonable detail together with the Members’ calculation of such item or amount (each, an “Earnout Dispute Notice” and each item or amount on the Earnout Statement to Dispute Notice, an “Earnout Disputed Item”). Other than the Sellers’ RepresentativeEarnout Disputed Items, such Earnout Statement the Members shall be final, binding deemed to have accepted all items and non-appealable on amounts contained in such EBITDA Notice. 2.4.3 In the parties hereto and all other Persons. If event that the Members shall deliver an Earnout Objections Statement is timely deliveredDispute Notice to Buyer, the Sellers’ Representative Buyer and the Buyer Members shall negotiate in good faith attempt to resolve any Earnout Disputed Item as promptly as practicable and, upon such objections set forth thereinresolution, but if they do not reach a final resolution any, any adjustments to the EBITDA Notice shall be made in accordance with the agreement of Buyer and the Members. If, for any reason, Buyer and the Members are unable to resolve any Earnout Disputed Item within thirty fifteen (3015) days after Business Days of the Members’ delivery of such Earnout Objections StatementDispute Notice, the Sellers’ Representative and the Buyer shall submit such dispute to an independent regionally recognized public accounting firm agreed upon shall be resolved by Buyer and Sellers’ Representative in writing (who shall not have any material relationship with the Sellers or Buyer or its Subsidiaries) (the “Accounting Firm”), Independent Accountant Arbitrator; provided that if the Sellers’ Representative Independent Accountant Arbitrator is unable or unwilling to serve in this capacity, then Buyer and the Buyer cannot agree upon the Accounting Firm promptly following Members shall within fifteen (15) Business Days after the end of the thirty such fifteen (30) day 15)-Business Day period after the delivery of agree on an Earnout Objections Statementalternate independent accounting firm, either one of them may request that the New York City office of the American Arbitration Association (or in default thereof such selection shall be made by AAA, which accounting firm shall be the “AAA”) select the Accounting Firm (who Independent Accountant Arbitrator” hereunder, and such determination shall be final and binding on, and shall not have any material relationship with the Sellers be subject to appeal by, Buyer or the Members, and may be entered and enforced as provided in Section 12.3. If there is a referral to the Independent Accountant Arbitrator, each of Buyer or and the Members agree, if requested by the Independent Accountant Arbitrator, to execute a reasonable engagement letter and submit to the Independent Accountant Arbitrator not later than ten (10) Business Days after its Subsidiaries)appointment, a written statement summarizing such Party’s position on the Earnout Disputed Items, together with such supporting documentation as such Party deems necessary. The Accounting Firm Independent Accountant Arbitrator shall make a act as an arbitrator to determine, based solely on the materials submitted and presentations by Buyer and the Members, and not by independent review, only the Earnout Disputed Items that have not been settled by negotiation, and its determination of any matters submitted with respect to it each Earnout Disputed Item shall be an amount within the range established with respect to such Earnout Disputed Item by Buyer’s calculation delivered pursuant to the terms hereof, and any such determination made by the Accounting Firm shall be final, conclusive and binding on all parties hereto and all other Persons. The parties will cooperate with the Accounting Firm during the term of its engagement, including by providing or causing to be provided to the Accounting Firm such information or documentation as the Accounting Firm may reasonably request If the Accounting Firm is engaged pursuant to the terms hereof, the parties shall enter into a customary engagement letter with such Accounting Firm, and the SellersSection 2.4.1, on the one hand, and the BuyerMembers’ calculation delivered pursuant to Section 2.4.2, on the other hand, shall each agree to pay one-half of the fees and expenses of such Accounting Firm (and, if applicable, the AAA). (c) No later than the date that is ten (10) Business Days following the final and conclusive determination of the Target Revenue Percentages for the Earnout Period pursuant to Section 2.4(b) hereof, if such Target Revenue Percentages shall exceed the thresholds for the making of any payment in respect of such Earnout Period pursuant to the Earnout Principles, and subject to the terms set forth in this Agreement (including the terms set forth in Article VI hereof), the Buyer shall pay, or cause to be paid, to the Sellers the amount required to be paid by the Buyer to the Sellers pursuant to Section 2.4(a) hereof, such payment to be made by wire transfer of immediately available funds to such account or accounts as the Sellers may designate to the Buyer in writing, such payments to be made to each Seller based on the Pro Rata Share thereof. The right of the Sellers to receive any payment pursuant to the Earnout Principles is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Sellers only the rights of a general unsecured creditor of the Buyer under applicable Law), (ii) will not be represented by any form of certificate or instrument, (iii) does not give the Sellers’ Representative, the Sellers or any other Person any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Buyer’s equity securities, and (iv) is not redeemable. (d) After the Closing Date, the Buyer shall: (i) cause the Company to maintain books and records for the Company in a manner intended to enable the Buyer to accurately determine the amount of Target Revenue Percentages during the Earnout Period, and (ii) not, directly or indirectly, take any action in bad faith for the purpose of circumventing or reducing the Earn-Out Payment. (e) All amounts paid by the Buyer pursuant to Section 2.4(a) Independent Accountant Arbitrator shall be treated by instructed to use reasonable best efforts to deliver to Buyer and the parties as an adjustment to the purchase price paid by the Buyer hereunder in respect of the Interests acquired pursuant to the terms hereof. (f) For the avoidance of doubt, the obligation of Buyer to make any payments pursuant to Section 2.4 shall not be contingent or conditioned upon the continuing employment or service of any Person (including the Sellers).Members a written report setting forth the

Earnout. (a) Subject In connection with this Section 2.5, Acquisition Sub shall ----------- deliver to the Representative no later than sixty (60) days following the end of the twelfth (12th) full calendar month following the Closing Date (such twelve (12) full month period beginning with the first day of the first month following the Closing Date and ending on the first anniversary of such date, the "Earnout ------- Period"), financial statements of Acquisition Sub setting forth the amount of ------ aggregate Net Income of Acquisition Sub (the "Acquisition Sub Financial ------------------------- Statements"), along with a reasonably detailed description of the calculations ----------- of the amount of the aggregate Net Income. In the event the Net Income of Acquisition Sub equals or exceeds the Target Amount, Acquisition Sub shall pay to IVonyx One Million Dollars ($1,000,000) (the "Earnout Payment") in accordance --------------- with the terms and conditions of this Section 2.42.5. If the Acquisition Sub Financial Statements ----------- indicate that Net Income is less than the Target Amount, then unless the Representative gives written notice to Acquisition Sub on or before the twentieth (20th) calendar day after the Representative's receipt of the Acquisition Sub Financial Statements, specifying in reasonable detail all disputed items and the basis therefor, the Buyer may become obligated to pay an Earn-Out Payment to Sellers as provided in Schedule 2.4 of this Agreement (the “Earnout Principles”). The Earnout Principles are hereby incorporated by reference into this Agreement and Representative shall be deemed to be included in have accepted the Acquisition Sub Financial Statements and a part Acquisition Sub shall have no obligation to pay the Earnout Payment to IVonyx. If the Representative so notifies Acquisition Sub of this Agreement. his objection to the Acquisition Sub Financial Statements, the Representative and Acquisition Sub shall, within twenty (b) Not less than ninety (9020) days following the Earnout Date (as defined such notice, attempt to resolve their differences in the Earnout Principles)good faith, the Buyer shall prepare and deliver to the Sellers’ Representative a statement (an “Earnout Statement”) that sets forth in reasonable detail its calculation of the Target Revenue Percentages (as defined in the Earnout Principles) for the Earnout Period. In the event S▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (i) dies during the Earnout Period, or (ii) is no longer employed any resolution by the Buyer during the Earnout Period then, in the case of clause (i), B▇▇▇▇ ▇▇▇▇▇▇▇▇, and, in the case of clause (ii), the Sellers’ Representative, shall, as applicable, be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records relating to the determination of the Earnout, subject to the proviso in the following sentence. Sellers’ Representative and its accountants shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records used in the preparation of the Earnout Statement, provided that the Sellers’ Representative and its accountants shall not have access to any such books or records if the provision thereof would, in the good faith judgment of the Buyer, (i) result in the loss of, or jeopardize, the attorney-client, attorney work product or any other similar legal privilege, (ii) result in a breach of the terms and conditions of any Contract to which the Company or any Affiliate thereof is a party or otherwise bound, or (iii) violate applicable Law. If the Sellers’ Representative has any objections to any Earnout Statement, the Sellers’ Representative shall deliver to the Buyer a written statement setting forth its objections thereto (an “Earnout Objections Statement”) with reasonable supporting detail them as to any such disputed items. If an Earnout Objections Statement is not delivered to the Buyer within thirty (30) days after delivery of the Earnout Statement to the Sellers’ Representative, such Earnout Statement amounts shall be final, binding and non-appealable on conclusive. If, at the parties hereto and all other Persons. If an Earnout Objections Statement is timely deliveredend of such twenty (20) day period, the Sellers’ Representative and Acquisition Sub are unable to resolve such disagreements, the Buyer independent accountants of Acquisition Sub and the Representative shall negotiate in good faith jointly select a third independent auditor of recognized national standing to resolve any such objections remaining disagreements, which third independent auditor shall not have provided accounting services to Acquisition Sub, Parent or any IVonyx Party during the five (5) year period immediately preceding the Closing Date, and which auditor so selected will be set forth therein, but if they do not reach a final resolution in writing and will be conclusive and binding upon the Parties (the "Independent Accountant"). Acquisition Sub and ---------------------- the Representative shall use their reasonable efforts to cause the Independent Accountant to make its determination within thirty (30) calendar days after the delivery of such Earnout Objections Statement, the Sellers’ Representative and the Buyer shall submit such dispute to an independent regionally recognized public accounting firm agreed upon by Buyer and Sellers’ Representative in writing (who shall not have any material relationship with the Sellers or Buyer or accepting its Subsidiaries) (the “Accounting Firm”), provided that if the Sellers’ Representative and the Buyer cannot agree upon the Accounting Firm promptly following the end of the thirty (30) day period after the delivery of an Earnout Objections Statement, either one of them may request that the New York City office of the American Arbitration Association (the “AAA”) select the Accounting Firm (who shall not have any material relationship with the Sellers or the Buyer or its Subsidiaries)selection. The Accounting Firm shall make a determination of any matters submitted to it pursuant to the terms hereof, and any such determination made by the Accounting Firm Independent Accountant shall be final, binding and conclusive and binding on all parties hereto and all other Personsthe Parties. The parties will cooperate with fees and expenses of the Accounting Firm during Independent Accountant shall be borne by the term of its engagementRepresentative if the Net Income determined by the Independent Accountant is less than the Target Amount; otherwise, including by providing or causing to be provided to the Accounting Firm such information or documentation as the Accounting Firm may reasonably request If the Accounting Firm is engaged pursuant to the terms hereof, the parties shall enter into a customary engagement letter with such Accounting Firm, and the Sellers, on the one hand, and the Buyer, on the other hand, shall each agree to pay one-half of the fees and expenses of such Accounting Firm (andthe Independent Accountant shall be borne by Acquisition Sub. Subject to Section 10.13 below, if applicable, the AAA). (c) No later than the date that is within ten (10) Business Days following calendar days ------------- after (i) receipt by the final and conclusive determination Representative of Acquisition Sub Financial Statements which reflect aggregate Net Income equal to or in excess of the Target Revenue Percentages for Amount, or (ii) in the event of a disagreement, the date of determination by the Independent Accountant that aggregate Net Income equals or exceeds the Target Amount, Acquisition Sub shall pay the Earnout Period pursuant Payment to IVonyx; provided, however, that if the Independent Accountant determines that IVonyx is entitled, under this Section 2.4(b) hereof2.5, if such Target Revenue Percentages shall exceed the thresholds for the making of any payment in respect of such Earnout Period pursuant to the Earnout PrinciplesPayment from ----------- Acquisition Sub, and subject Acquisition Sub shall pay the Earnout Payment with interest from the period commencing on the one hundredth (100th) day following the Closing Date to the terms set forth in this Agreement date the Earnout Payment is actually paid at the compound rate of ten percent (including the terms set forth in Article VI hereof), the Buyer 10%) per annum. (b) The Earnout Payment (and any interest thereon) shall pay, or cause to be paid, to the Sellers the amount required to be paid by the Buyer to the Sellers pursuant to Section 2.4(a) hereof, such payment to be made by cashiers or certified bank check or by wire transfer of immediately available funds to such an account or accounts as the Sellers may designate specified by IVonyx. The Earnout Payment shall, to the Buyer extent required by law, be deemed to include interest at the applicable federal rate under the Code (it being understood that such deemed interest will not affect the amount due and payable under this Section 2.5). ----------- (c) In connection with the operation of the Business after the Closing, the Koop Parties agree to maintain separate divisional books and records for the Business in writingaccordance with generally accepted accounting principles, such payments to be made to each Seller based on the Pro Rata Share thereofconsistently applied. The right of Koop Parties and IVonyx agree to act in good faith during the Sellers to receive any payment pursuant Earnout Period relative to the Business and not to take actions that (i) would be unfairly prejudicial or discriminatory to the Business or to the interests of IVonyx in receiving the Earnout Principles is solely a contractual right Payment and is not a security for purposes of any federal or state securities laws (and shall confer upon the Sellers only the rights of a general unsecured creditor of the Buyer under applicable Law), (ii) will are not be represented by any form of certificate or instrument, (iii) does not give the Sellers’ Representative, the Sellers or any other Person any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Buyer’s equity securities, and (iv) is not redeemabletaken in good faith for valid business reasons. (d) After Upon delivery of the Closing DateAcquisition Sub Financial Statements, Acquisition Sub shall afford to IVonyx and its accounting representatives prompt and reasonable access upon reasonable notice to all information reasonably necessary to verify calculation of the Buyer shall: Net Income. Acquisition Sub shall make its employees who are familiar with such matters, its independent outside accounting firm and its outside actuarial advisors (if any) available to IVonyx and its representatives on a mutually convenient basis at reasonable times during normal business hours to provide an explanation of such materials and to provide such other information [(including, but not limited to, accountants' work papers and reserve calculations)] as IVonyx and its representatives may reasonably request in connection with its review of the Acquisition Sub Financial Statements. (i) cause the Company failure by Acquisition Sub to maintain books and records for the Company in a manner intended to enable the Buyer to accurately determine the pay any amount of Target Revenue Percentages during the Earnout Period, and when due under this Section 2.5; or ----------- (ii) not, directly any direct or indirectly, take any action in bad faith for indirect sale or transfer of all or substantially all of the purpose assets of circumventing Acquisition Sub; unless the purchaser assumes the Koop Parties' obligations under this Section 2.5; or reducing the Earn-Out Payment.----------- (eiii) All amounts paid by any sale of stock, merger, consolidation, share exchange, business combination, or similar transaction which results in persons other than the Buyer pursuant holders of Acquisition Sub's common stock immediately prior to such transaction holding a number of shares of Acquisition Sub's common stock possessing the power, under ordinary circumstances, to elect a majority of the Board of Directors of Acquisition Sub or the surviving entity following any such transaction; unless the surviving entity confirms that it will remain obligated to comply with the terms of this Section 2.4(a2.5 to the same extent as the Koop ----------- Parties. In the event that one or more Events of Default described in subsections (i) or (ii) above shall occur, then the Earnout Payment shall be treated by immediately due and payable without demand, notice or declaration of any kind whatsoever, notwithstanding whether or not the parties as an adjustment to Net Income equals or would have equaled the purchase price paid by Target Amount. In the Buyer hereunder in respect event of the Interests acquired pursuant to the terms hereof. (f) For the avoidance of doubt, the obligation of Buyer to make any payments pursuant to Section 2.4 shall not be contingent or conditioned upon the continuing employment or service occurrence of any Person (including the Sellers)Event of Default, IVonyx may exercise any remedies set forth in this Section 2.5 or ----------- otherwise in this Agreement or any other rights and remedies available to IVonyx under applicable law.

Earnout. (a) Subject Purchaser shall pay to Seller an additional amount (the terms “Earnout”), based on the EBITDA, if any, generated by the Business during the period commencing on January 1, 2006 and conditions of this Section 2.4ending on December 31, the Buyer may become obligated to pay an Earn-Out Payment to Sellers as provided in Schedule 2.4 of this Agreement 2006 (the “Earnout PrinciplesPeriod”). The ) as follows: (i) If the Business generates EBITDA during the Earnout Principles are hereby incorporated by reference into this Agreement and Period of less than or equal to $7,500,000 but more than $0, then Purchaser shall be deemed pay to be included in and a part Seller $800,000; (ii) If the Business generates EBITDA during the Earnout Period of this Agreementless than or equal to $8,000,000 but more than $7,500,000, then Purchaser shall pay to Seller $1,200,000; (iii) If the Business generates EBITDA during the Earnout Period of less than or equal to $8,400,000 but more than $8,000,000, then Purchaser shall pay to Seller $1,600,000; or (iv) If the Business generates EBITDA during the Earnout Period of more than $8,400,000, then Purchaser shall pay to Seller $2,000,000. (b) Not less than ninety (90) Within 90 days following the Earnout Date (as defined in the Earnout Principles), the Buyer shall prepare and deliver to the Sellers’ Representative a statement (an “Earnout Statement”) that sets forth in reasonable detail its calculation end of the Target Revenue Percentages (as defined in the Earnout Principles) for the Earnout Period. In the event S▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (i) dies during the Earnout Period, or Purchaser shall deliver to Seller a notice specifying the EBITDA for such period (iithe “Earnout Notice”) is no longer employed showing in reasonable detail the computation thereof, all to be accompanied by a certification by Purchaser’s chief financial officer that such computation was based on Purchaser’s books and records and performed in a manner consistent with the Buyer during preparation of the Annual Financial Statements to the extent they were prepared in accordance with GAAP. (c) During the preparation of the Earnout Period thenNotice and the period of any review contemplated by this Section 4.2, in the case of clause Purchaser shall (i)) provide Seller, B▇▇▇▇ ▇▇▇▇▇▇▇▇upon reasonable notice, and, in the case of clause (ii), the Sellers’ Representative, shall, as applicable, be permitted reasonable full access during normal business hours upon reasonable advance notice to the books, records, facilities and employees of Purchaser involved with or related to the Business to review the Company’s books and records relating to the determination of the Earnout, subject to the proviso in the following sentence. Sellers’ Representative and its accountants shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records used in the preparation of the Earnout Statement, provided that the Sellers’ Representative Notice and its accountants shall not have access to any such books or records if the provision thereof would, in the good faith judgment of the Buyer, (i) result in the loss of, or jeopardize, the attorney-client, attorney work product or any other similar legal privilege, (ii) result cooperate with Seller, including the provision on a timely basis of all information reasonably requested by Seller and necessary or useful in a breach reviewing the preparation of the terms Earnout Notice. (d) After receipt of the Earnout Notice, Seller shall have 30 days to review the Earnout Notice, together with all the work papers used in preparation thereof. Unless Seller delivers a written notice to Purchaser on or before the 30th day after Seller’s receipt of the Earnout Notice specifying, in reasonable detail, all disputed items and conditions of any Contract the basis therefore, the Seller shall be deemed to which have accepted and agreed to the Company or any Affiliate thereof is a party or otherwise bound, or (iii) violate applicable LawEarnout Notice. If the Sellers’ Representative has any objections to any Earnout Statement, the Sellers’ Representative shall deliver Seller notifies Purchaser of an objection to the Buyer a written statement setting forth its objections thereto (an “Earnout Objections Statement”) with reasonable supporting detail Notice, Seller and Purchaser shall, within 30 days following such notice, attempt to resolve their differences and any resolution by them as to any such disputed items. If an Earnout Objections Statement is not delivered to the Buyer within thirty (30) days after delivery of the Earnout Statement to the Sellers’ Representative, such Earnout Statement amounts shall be final, binding and nonconclusive for Purchaser and Seller. If, at the end of such 30-appealable on day period, any amounts shall remain in dispute, then all amounts remaining in dispute with respect to the parties hereto calculation of EBITDA shall be submitted to a firm of reputable independent accountants (the “Neutral Auditor”) selected by Purchaser and all other Persons. If an Earnout Objections Statement is timely delivered, the Sellers’ Representative and the Buyer shall negotiate in good faith to resolve any such objections set forth therein, but if they do not reach a final resolution Seller within thirty ten (3010) days after the delivery expiration of such Earnout Objections Statementthe 30-day period. If Purchaser and Seller are unable to agree on the Neutral Auditor, then Purchaser and Seller shall each have the Sellers’ Representative and right to request the Buyer shall submit such dispute American Arbitration Association to an independent regionally recognized public accounting firm agreed upon by Buyer and Sellers’ Representative in writing (appoint the Neutral Auditor, who shall not have any had a material business relationship with Seller, Purchaser or any of their respective Affiliates within the Sellers or Buyer or past two (2) years. Purchaser and Seller agree to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses relating to the work, if any, to be performed by the Neutral Auditor shall be borne 50% by Purchaser and 50% by Seller. The Neutral Auditor shall act as an arbitrator to determine only those issues that remain in dispute between Purchaser and Seller, and each of them shall submit to the Neutral Auditor a statement of its Subsidiariesposition within five (5) (business days the “Accounting Firm”)selection of the Neutral Auditor. The Neutral Auditor’s determination shall be made within 30 days of its selection, provided that if the Sellers’ Representative shall be set forth in a written statement delivered to Seller and the Buyer cannot agree Purchaser, and shall be final, binding and conclusive on Purchaser and Seller. Judgment upon the Accounting Firm promptly decision of the Neutral Auditor may be entered by Purchaser or Seller in any court of competent jurisdiction. (e) Other than a determination by the Neutral Auditor as provided under Section 4.2(d) hereof, when the amount payable to Seller, if any, under this Section 4.2 has been determined in accordance with the terms and procedures set forth in this Section 4.2, Purchaser shall prepare, and Purchaser and Seller shall execute, a written statement setting forth the amount of such payment which shall be final, binding and conclusive on Purchaser and Seller. The amounts, if any, payable to Seller pursuant to this Section 4.2 shall be paid by Purchaser within five (5) business days following the final determination of the amount payable in accordance with this Section 4.2. (f) Purchaser covenants and agrees for the benefit of the Seller that during the period from the date of the Closing until the end of the thirty (30) day period after the delivery of an Earnout Objections StatementPeriod, either one of them may request that the New York City office of the American Arbitration Association (the “AAA”) select the Accounting Firm (who shall not have any material relationship with the Sellers or the Buyer or its Subsidiaries). The Accounting Firm shall make a determination of any matters submitted to it pursuant to the terms hereof, and any such determination made by the Accounting Firm shall be final, conclusive and binding on all parties hereto and all other Persons. The parties will cooperate with the Accounting Firm during the term of its engagement, including by providing or causing to be provided to the Accounting Firm such information or documentation as the Accounting Firm may reasonably request If the Accounting Firm is engaged pursuant to the terms hereof, the parties shall enter into a customary engagement letter with such Accounting Firm, and the Sellers, on the one hand, and the Buyer, on the other hand, shall each agree to pay one-half of the fees and expenses of such Accounting Firm (and, if applicable, the AAA). (c) No later than the date that is ten (10) Business Days following the final and conclusive determination of the Target Revenue Percentages for the Earnout Period pursuant to Section 2.4(b) hereof, if such Target Revenue Percentages shall exceed the thresholds for the making of any payment in respect of such Earnout Period pursuant to the Earnout Principles, and subject to the terms set forth in this Agreement (including the terms set forth in Article VI hereof), the Buyer shall pay, or cause to be paid, to the Sellers the amount required to be paid by the Buyer to the Sellers pursuant to Section 2.4(a) hereof, such payment to be made by wire transfer of immediately available funds to such account or accounts as the Sellers may designate to the Buyer in writing, such payments to be made to each Seller based on the Pro Rata Share thereof. The right of the Sellers to receive any payment pursuant to the Earnout Principles is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Sellers only the rights of a general unsecured creditor of the Buyer under applicable Law), (ii) will not be represented by any form of certificate or instrument, (iii) does not give the Sellers’ Representative, the Sellers or any other Person any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Buyer’s equity securities, and (iv) is not redeemable. (d) After the Closing Date, the Buyer shallwill: (i) cause separate books of account and financial statements of the Company Business to maintain books and records be maintained consistent with the preparation of the Annual Financial Statements to the extent they were prepared in accordance with GAAP, for purposes of determining whether the Company Business has achieved the EBITDA targets set forth in a manner intended to enable the Buyer to accurately determine the amount of Target Revenue Percentages during the Earnout Period, and Section 4.2(a); (ii) not, directly or indirectly, take any action in bad faith for the purpose of circumventing or reducing the Earn-Out Payment. (e) All amounts paid if requested by the Buyer pursuant Seller, provide the Seller with copies of annual financial statements of the Business covering the Earnout Period prepared in accordance with (i) above promptly after such financial statements become available; and (iii) operate or cause to Section 2.4(a) shall be treated operated the Business in substantially the same manner as operated by the parties Seller as an adjustment of immediately prior to the purchase price paid by the Buyer hereunder in respect of the Interests acquired pursuant to the terms hereofClosing. (f) For the avoidance of doubt, the obligation of Buyer to make any payments pursuant to Section 2.4 shall not be contingent or conditioned upon the continuing employment or service of any Person (including the Sellers).

Earnout. (a) Subject to the terms 2.4.1 As promptly as practicable, and conditions of this Section 2.4, the Buyer may become obligated to pay an Earn-Out Payment to Sellers as provided in Schedule 2.4 of this Agreement (the “Earnout Principles”). The Earnout Principles are hereby incorporated by reference into this Agreement and shall be deemed to be included in and a part of this Agreement. (b) Not less than any event within ninety (90) days following each of the Earnout Date (as defined in the Earnout Principles)fiscal years ended December 31, the 2013, 2014 and 2015, Buyer shall prepare and will deliver to the Sellers’ Representative Members a statement (an “Earnout Statement”) that sets written notice setting forth in reasonable detail its Buyer’s calculation of the Target Revenue Percentages (as defined in the Earnout Principles) for the Earnout Period. In the event S▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (i) dies during the Earnout Period, or (ii) is no longer employed by the Buyer during the Earnout Period thenActual EBITDA, in the case of clause (i)the fiscal years ended December 31, B▇▇▇▇ ▇▇▇▇▇▇▇▇2013 and 2014, andand Actual EBITDA and Actual Cumulative EBITDA, in the case of clause the fiscal year ended December 31, 2015 (iieach, an “EBITDA Notice”). Upon receipt of an EBITDA Notice, the Sellers’ Representative, shall, as applicable, Members and their Representatives shall be permitted given reasonable access during normal business hours upon reasonable advance notice to review all of the Company’s books and records of the Company relating to the determination of the Earnout, subject to the proviso in the following sentence. Sellers’ Representative and its accountants such notice. 2.4.2 The Members shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records used in the preparation of the Earnout Statement, provided that the Sellers’ Representative and its accountants shall not have access to any such books or records if the provision thereof would, in the good faith judgment of the Buyer, (i) result in the loss of, or jeopardize, the attorney-client, attorney work product or any other similar legal privilege, (ii) result in a breach of the terms and conditions of any Contract to which the Company or any Affiliate thereof is a party or otherwise bound, or (iii) violate applicable Law. If the Sellers’ Representative has any objections to any Earnout Statement, the Sellers’ Representative shall deliver to the Buyer a written statement setting forth its objections thereto (an “Earnout Objections Statement”) with reasonable supporting detail as to any such disputed items. If an Earnout Objections Statement is not delivered to the Buyer within thirty (30) days after delivery Business Days following receipt of an EBITDA Notice to review it and to notify Buyer in writing if the Members dispute any item or amount set forth on such EBITDA Notice, specifying the reasons therefor in reasonable detail together with the Members’ calculation of such item or amount (each, an “Earnout Dispute Notice” and each item or amount on the Earnout Statement to Dispute Notice, an “Earnout Disputed Item”). Other than the Sellers’ RepresentativeEarnout Disputed Items, such Earnout Statement the Members shall be final, binding deemed to have accepted all items and non-appealable on amounts contained in such EBITDA Notice. 2.4.3 In the parties hereto and all other Persons. If event that the Members shall deliver an Earnout Objections Statement is timely deliveredDispute Notice to Buyer, the Sellers’ Representative Buyer and the Buyer Members shall negotiate in good faith attempt to resolve any Earnout Disputed Item as promptly as practicable and, upon such objections set forth thereinresolution, but if they do not reach a final resolution any, any adjustments to the EBITDA Notice shall be made in accordance with the agreement of Buyer and the Members. If, for any reason, Buyer and the Members are unable to resolve any Earnout Disputed Item within thirty fifteen (3015) days after Business Days of the Members’ delivery of such Earnout Objections StatementDispute Notice, the Sellers’ Representative and the Buyer shall submit such dispute to an independent regionally recognized public accounting firm agreed upon shall be resolved by Buyer and Sellers’ Representative in writing (who shall not have any material relationship with the Sellers or Buyer or its Subsidiaries) (the “Accounting Firm”), Independent Accountant Arbitrator; provided that if the Sellers’ Representative Independent Accountant Arbitrator is unable or unwilling to serve in this capacity, then Buyer and the Buyer cannot agree upon the Accounting Firm promptly following Members shall within fifteen (15) Business Days after the end of the thirty such fifteen (30) day 15)-Business Day period after the delivery of agree on an Earnout Objections Statementalternate independent accounting firm, either one of them may request that the New York City office of the American Arbitration Association (or in default thereof such selection shall be made by AAA, which accounting firm shall be the “AAA”) select the Accounting Firm (who Independent Accountant Arbitrator” hereunder, and such determination shall be final and binding on, and shall not have any material relationship with the Sellers be subject to appeal by, Buyer or the Members, and may be entered and enforced as provided in Section 12.3. If there is a referral to the Independent Accountant Arbitrator, each of Buyer or and the Members agree, if requested by the Independent Accountant Arbitrator, to execute a reasonable engagement letter and submit to the Independent Accountant Arbitrator not later than ten (10) Business Days after its Subsidiaries)appointment, a written statement summarizing such Party’s position on the Earnout Disputed Items, together with such supporting documentation as such Party deems necessary. The Accounting Firm Independent Accountant Arbitrator shall make a act as an arbitrator to determine, based solely on the materials submitted and presentations by Buyer and the Members, and not by independent review, only the Earnout Disputed Items that have not been settled by negotiation, and its determination of any matters submitted with respect to it each Earnout Disputed Item shall be an amount within the range established with respect to such Earnout Disputed Item by Buyer’s calculation delivered pursuant to the terms hereof, and any such determination made by the Accounting Firm shall be final, conclusive and binding on all parties hereto and all other Persons. The parties will cooperate with the Accounting Firm during the term of its engagement, including by providing or causing to be provided to the Accounting Firm such information or documentation as the Accounting Firm may reasonably request If the Accounting Firm is engaged pursuant to the terms hereof, the parties shall enter into a customary engagement letter with such Accounting Firm, and the SellersSection 2.4.1, on the one hand, and the BuyerMembers’ calculation delivered pursuant to Section 2.4.2, on the other hand, . The Independent Accountant Arbitrator shall be instructed to use reasonable best efforts to deliver to Buyer and the Members a written report setting forth the resolution of each agree to pay one-half Disputed Item within thirty (30) days of submission of the fees materials submitted by Buyer and expenses of such Accounting Firm (the Members to it and, if applicablein any case, as promptly as practicable after such submission. Any expenses relating to the AAA). (c) No later than the date that is ten (10) Business Days following the final and conclusive determination engagement of the Target Revenue Percentages for the Earnout Period pursuant to Section 2.4(b) hereof, if such Target Revenue Percentages shall exceed the thresholds for the making of any payment Independent Accountant Arbitrator in respect of such Earnout Period its services pursuant to this Section 2.4.3 shall be borne by Buyer and the Members in relative proportion to the amount by which the calculation of the Earnout Principles, and subject to Disputed Items by each of them differs from that of the terms set forth in this Agreement (including the terms set forth in Article VI hereof), the Buyer shall pay, or cause to be paid, to the Sellers the amount required to be paid by the Buyer to the Sellers pursuant to Section 2.4(a) hereofIndependent Accountant Arbitrator, such payment calculation to be made by the Independent Accountant Arbitrator. A “Final EBITDA Notice” shall be (a) if no Earnout Dispute Notice has been timely delivered by the Members, the EBITDA Notice, as originally submitted by Buyer, or (b) if an Earnout Dispute Notice has been timely delivered by the Members, the EBITDA Notice, as adjusted to take into account (i) the items and amounts accepted or deemed to have been accepted by the Members, (ii) Earnout Disputed Items settled by negotiation and (iii) Earnout Disputed Items determined by the Independent Accountant Arbitrator. 2.4.4 If Actual EBITDA calculated based on a Final EBITDA Notice for any of the fiscal years ended December 31, 2013, 2014 and 2015 equals or exceeds eighty-five percent (85%) of Projected EBITDA for any such fiscal year, Buyer shall pay the Members for such fiscal year one-third (1/3) of Actual EBITDA for such fiscal year (each, a “Yearly EBITDA Payment”), by wire transfer of immediately available funds funds, without deduction, set-off, counterclaim or withholding (except as otherwise permitted pursuant to such Sections 2.5 and 10.10), within five (5) Business Days after the determination of the Final EBITDA Notice to the account or accounts as designated by the Sellers may designate to Members in writing no later than three (3) Business Days after the Buyer in writing, such payments to be made to each Seller based on the Pro Rata Share thereof. The right determination of the Sellers to receive any payment pursuant to the Earnout Principles is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Sellers only the rights of a general unsecured creditor of the Buyer under applicable Law), (ii) will not be represented by any form of certificate or instrument, (iii) does not give the Sellers’ Representative, the Sellers or any other Person any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Buyer’s equity securities, and (iv) is not redeemable. (d) After the Closing Date, the Buyer shall: (i) cause the Company to maintain books and records for the Company in a manner intended to enable the Buyer to accurately determine the amount of Target Revenue Percentages during the Earnout Period, and (ii) not, directly or indirectly, take any action in bad faith for the purpose of circumventing or reducing the Earn-Out Payment. (e) All amounts paid by the Buyer pursuant to Section 2.4(a) shall be treated by the parties as an adjustment to the purchase price paid by the Buyer hereunder in respect of the Interests acquired pursuant to the terms hereof. (f) Final EBITDA Notice. For the avoidance of doubt, if Actual EBITDA calculated based on a Final EBITDA Notice for any of the obligation fiscal years ended December 31, 2013, 2014 and 2015 is less than eighty-five (85%) of Projected EBITDA for any such fiscal year, Buyer to shall make no Yearly EBITDA Payment for such fiscal year. 2.4.5 If Actual Cumulative EBITDA calculated based on a Final EBITDA Notice equals or exceeds one hundred percent (100%) of Projected Cumulative EBITDA, Buyer shall pay the Members, if positive, Fifteen Million Dollars ($15,000,000) less the aggregate amount of any payments Yearly EBITDA Payments paid or payable (the “Cumulative EBITDA Payment”), by wire transfer of immediately available funds, without deduction, set-off, counterclaim or withholding (except as otherwise permitted pursuant to Section 2.4 Sections 2.5 and 10.10), within five (5) Business Days after the determination of the Final EBITDA Notice for the fiscal year ended December 31, 2015 to the account or accounts designated by the Members in writing no later than three (3) Business Days after the determination of the Final EBITDA Notice for the fiscal year ended December 31, 2015. If Actual Cumulative EBITDA calculated based on a Final EBITDA Notice equals or exceeds one hundred-fifteen percent (115%) of Projected Cumulative EBITDA, Buyer shall pay the Members fifty percent (50%) of the difference between Actual Cumulative EBITDA and Projected Cumulative EBITDA (the “Premium Performance Payment,” together with the Yearly EBITDA Payments and the Cumulative EBITDA Payment, each an “Earnout Amount”), by wire transfer of immediately available funds, without deduction, set-off, counterclaim or withholding (except as otherwise permitted pursuant to Sections 2.5 and 10.10), within five (5) Business Days after the determination of the Final EBITDA Notice for the fiscal year ended December 31, 2015 to the account or accounts designated by the Members in writing no later than three (3) Business Days after the determination of the Final EBITDA Notice for the fiscal year ended December 31, 2015. For the avoidance of doubt, if Actual Cumulative EBITDA calculated based on a Final EBITDA Notice is less than one hundred percent (100%) of Projected Cumulative EBITDA, Buyer shall make no Cumulative EBITDA Payment or Premium Performance Payment. 2.4.6 For so long as any Earnout Amount may be payable, (i) Buyer shall take, and shall cause the Company to take, all appropriate measures to ensure that the Company generates financial statements sufficient to allow the Earnout Amounts to be calculated and reviewed in accordance with this Agreement and (ii) Buyer shall not intentionally take, and shall cause the Company not to intentionally take, any action the primary purpose of which is to frustrate the ability of the Company to meet or exceed Projected EBITDA. 2.4.7 The Members hereby agree that any Earnout Amounts paid to the Members shall be contingent or conditioned upon the continuing employment or service of any Person (including the Sellers)distributed in accordance with each Member’s Allocable Share.

Earnout. (a) Subject Buyer shall submit to Seller, within thirty (30) days following the conclusion of each calendar month, a monthly report setting forth (i) the aggregate cast house production (measured in metric tons) and, without duplication, molten aluminum sales volume (measured in metric tons) at the Mt. Holly Fa▇▇▇▇▇y for each calendar month beginning October 1, 2014 and ending December 1, 2015 and (ii) the occurrence of any Business Interruption Event and the receipt of any Business Interruption Recovery Amount, with the first such report being due within thirty (30) days following the end of the first calendar month ending after the Closing Date. Notwithstanding anything to the terms and conditions of contrary in this Agreement, in no event shall the Buyer be liable to the Seller for any inaccuracies contained in any report delivered pursuant to this Section 2.42.7(a), provided, however, that the Buyer may become obligated to pay an Earn-Out Payment to Sellers as provided shall inform the Seller of any material inaccuracy contained in Schedule 2.4 any such report within a reasonable time after the Buyer becomes actually aware of this Agreement (the “Earnout Principles”). The Earnout Principles are hereby incorporated by reference into this Agreement and shall be deemed to be included in and a part of this Agreementsuch material inaccuracy. (b) Not less than ninety (90) days following the Earnout Date (as defined in the Earnout Principles)On or prior to January 31, 2016, the Buyer shall prepare and deliver to the Sellers’ Representative Seller a statement (an the “Earnout Statement”) that sets setting forth the Buyer’s calculation of the Earnout Amount. (c) The Earnout Statement and the calculation of the Earnout Amount reflected therein shall become final and binding upon the Buyer and the Seller on the 60th day following the Buyer’s delivery thereof to the Seller unless the Seller gives written notice of its disagreement with any component of the Earnout Statement (the “Earnout Objection Notice”) to the Buyer prior to such date. An Earnout Objection Notice shall specify in reasonable detail its calculation the nature of any such disagreement and include all supporting schedules, analyses, working papers and other documentation. If an 28 Earnout Objection Notice complying with the Target Revenue Percentages preceding sentence is given by the Seller in a timely manner, then the Earnout Statement (as defined revised in accordance with this Section 2.7(c)) shall become final, binding and non-appealable upon the Earnout Principles) for the Earnout Period. In the event S▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ earlier of (i) dies during the date on which the Buyer and the Seller resolve in writing any disputes with respect to the matters specified in such Earnout PeriodObjection Notice, or (ii) is no longer employed the date on which any such disputes are finally resolved in writing by the Accounting Firm. During the 60-day period following the delivery of an Earnout Objection Notice in compliance with this paragraph, the Buyer and the Seller shall seek in good faith to resolve any disputes with respect to the matters specified in the Earnout Objection Notice. If, at the end of such 60-day period, the Buyer and the Seller have not resolved such disputes, the Buyer and the Seller shall submit to the Accounting Firm for review and resolution of any and all matters that remain in dispute. The Buyer and the Seller shall use their respective good faith efforts to cause the Accounting Firm to render a decision resolving the matters in dispute within 60 days following the submission of such matters to the Accounting Firm. The Accounting Firm shall (A) allow the Buyer and the Seller to submit written presentations and supporting evidence regarding their respective positions, copies of which shall be delivered to the other Party, (B) include reasons for each relevant determination in its written statement, (C) review only, and base the resolution of the calculations in dispute solely on, the submissions by the Buyer during and the Earnout Period thenSeller and (D) not perform an independent review or audit of financial information, unless so requested in writing by the case Buyer and the Seller. The Accounting Firm shall address only the calculations in dispute and any items directly impacted thereby, and any resolution of clause (i), B▇▇▇▇ ▇▇▇▇▇▇▇▇, and, in a disputed calculation by the case of clause (ii), Accounting Firm shall not be outside the Sellers’ Representative, shall, as applicable, be permitted reasonable access during normal business hours upon reasonable advance notice to review range for such calculation created by the Company’s books and records relating to the determination submissions of the Earnout, subject to Buyer and the proviso in the following sentenceSeller. Sellers’ Representative and its accountants The Accounting Firm’s determination shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records used set forth in the preparation of the Earnout Statement, provided that the Sellers’ Representative and its accountants shall not have access to any such books or records if the provision thereof would, in the good faith judgment of the Buyer, (i) result in the loss of, or jeopardize, the attorney-client, attorney work product or any other similar legal privilege, (ii) result in a breach of the terms and conditions of any Contract to which the Company or any Affiliate thereof is a party or otherwise bound, or (iii) violate applicable Law. If the Sellers’ Representative has any objections to any Earnout Statement, the Sellers’ Representative shall deliver to the Buyer a written statement setting forth its objections thereto (an “Earnout Objections Statement”) with reasonable supporting detail as to any such disputed items. If an Earnout Objections Statement is not delivered to the Buyer within thirty (30) days after delivery of the Earnout Statement to the Sellers’ Representative, such Earnout Statement Parties and shall be final, binding and non-appealable on the parties hereto appealable. All fees and all other Persons. If an Earnout Objections Statement is timely delivered, the Sellers’ Representative and the Buyer shall negotiate in good faith to resolve any such objections set forth therein, but if they do not reach a final resolution within thirty (30) days after the delivery expenses of such Earnout Objections Statement, the Sellers’ Representative and the Buyer shall submit such dispute to an independent regionally recognized public accounting firm agreed upon by Buyer and Sellers’ Representative in writing (who shall not have any material relationship with the Sellers or Buyer or its Subsidiaries) (the “Accounting Firm”), provided that if the Sellers’ Representative and the Buyer cannot agree upon the Accounting Firm promptly following the end of the thirty (30) day period after the delivery of an Earnout Objections Statement, either one of them may request that the New York City office of the American Arbitration Association (the “AAA”) select the Accounting Firm (who shall not have any material relationship with the Sellers or the Buyer or its Subsidiaries). The Accounting Firm shall make a determination of any matters submitted to it pursuant to the terms hereof, and any such determination made by the Accounting Firm shall be finalborne by the Buyer and the Seller in inverse proportion as each may prevail on the value of (and not the quantity of) matters resolved by the Accounting Firm, conclusive and binding on all parties hereto and all other Persons. The parties will cooperate with which inverse proportionate allocations shall also be determined by the Accounting Firm during at the term time the determination of its engagement, including by providing or causing to be provided to the Accounting Firm such information or documentation as the Accounting Firm may reasonably request If the Accounting Firm is engaged pursuant to the terms hereof, the parties shall enter into a customary engagement letter with such Accounting Firm, and the Sellers, rendered on the one hand, and the Buyer, on the other hand, shall each agree to pay one-half merits of the fees and expenses of such Accounting Firm (and, if applicable, the AAA)matters submitted. (cd) No later than the date that is ten (10) Within 10 Business Days following the final and conclusive determination of the Target Revenue Percentages for after the Earnout Period pursuant to Amount is finally determined in accordance with Section 2.4(b) hereof, if such Target Revenue Percentages shall exceed the thresholds for the making of any payment in respect of such Earnout Period pursuant to the Earnout Principles, and subject to the terms set forth in this Agreement (including the terms set forth in Article VI hereof2.7(c), the Buyer shall pay, or cause to be paid, to the Sellers the amount required to be paid Seller, by the Buyer to the Sellers pursuant to Section 2.4(a) hereof, such payment to be made by bank wire transfer of immediately available funds to such an account designated in writing by the Seller, the lesser of (a) the Earnout Amount and (b) $22,500,000; provided, however, that, if the Earnout Amount is a negative number, the Seller shall instead pay, or accounts as the Sellers may designate cause to be paid, to the Buyer Buyer, by bank wire transfer of immediately available funds to an account designated in writingwriting by the Buyer, such payments to be made to each Seller based on the Pro Rata Share thereof. The right lesser of (a) the absolute value of the Sellers to receive any payment pursuant to the Earnout Principles is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Sellers only the rights of a general unsecured creditor of the Buyer under applicable Law), (ii) will not be represented by any form of certificate or instrument, (iii) does not give the Sellers’ Representative, the Sellers or any other Person any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Buyer’s equity securities, Amount and (ivb) is not redeemable$12,500,000. (d) After the Closing Date, the Buyer shall: (i) cause the Company to maintain books and records for the Company in a manner intended to enable the Buyer to accurately determine the amount of Target Revenue Percentages during the Earnout Period, and (ii) not, directly or indirectly, take any action in bad faith for the purpose of circumventing or reducing the Earn-Out Payment. (e) All amounts paid by the Buyer pursuant to Section 2.4(a) shall be treated by the parties as an adjustment to the purchase price paid by the Buyer hereunder in respect of the Interests acquired pursuant to the terms hereof. (f) For the avoidance of doubt, the obligation of Buyer to make any payments pursuant to Section 2.4 shall not be contingent or conditioned upon the continuing employment or service of any Person (including the Sellers).

Earnout. (a) Subject to the terms Borrower’s request, and the Administrative Agent’s confirmation of the Borrower’s satisfaction of the conditions below, Lenders shall disburse to or for the benefit of this Section 2.4the Borrower, the Buyer may become obligated in up to pay two (2) disbursements, up to an Earn-Out Payment to Sellers as provided in Schedule 2.4 of this Agreement additional $11,500,000 (the “Earnout PrinciplesEarnout”). Any undisbursed portion of the Earnout shall be cancelled on December 15, 2013. Disbursement of the Earnout shall be conditioned upon satisfaction of the following conditions: (i) The Borrower shall have delivered to the Administrative Agent a request for disbursement of all or a portion of the Earnout, which request shall have been received by the Administrative Agent by not later than November 15, 2013. The Borrower’s request shall specify the amount of the Earnout Principles are hereby incorporated requested, which amount, when added to any portion of the Earnout previously disbursed, shall not exceed $11,500,000; (ii) Borrower shall not have previously received more than one (1) partial disbursement of the Earnout; (iii) As of the date of the Borrower’s request for disbursement, and as of the date on which the Earnout is to be disbursed, (A) no Default or Event of Default shall exist, (B) no material default (beyond the expiration of any applicable notice and cure periods), as determined by reference into this the Administrative Agent, shall exist under the Management Agreement or the Franchise Agreement and (C) there shall have been no change, circumstance or occurrence which could reasonably be expected to have a Material Adverse Effect, as determined by the Administrative Agent in its sole discretion; (iv) The Debt Service Coverage Ratio, calculated as of the last day of each of the two (2) most recent fiscal quarters preceding the date of the Borrower’s request, shall be not less than 1.35, and the Borrower shall provide evidence thereof acceptable to the Administrative Agent in its sole discretion; provided, for purposes of calculating Pro Forma Debt Service, the “outstanding principal balance of the Loans” shall be deemed to be included in and a part of this Agreement. (b) Not less than ninety (90) days following include the Earnout Date (as defined in the Earnout Principles), the Buyer shall prepare and deliver to the Sellers’ Representative a statement (an “Earnout Statement”) that sets forth in reasonable detail its calculation of the Target Revenue Percentages (as defined in the Earnout Principles) for the Earnout Period. In the event S▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (i) dies during the Earnout Period, or (ii) is no longer employed by the Buyer during the Earnout Period then, in the case of clause (i), B▇▇▇▇ ▇▇▇▇▇▇▇▇, and, in the case of clause (ii), the Sellers’ Representative, shall, as applicable, be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records relating to the determination of the Earnout, subject to the proviso in the following sentence. Sellers’ Representative and its accountants shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records used in the preparation portion of the Earnout Statement, provided that the Sellers’ Representative and its accountants Borrower has requested be disbursed; (v) The Borrower shall not have access paid to any such books or records if the provision thereof wouldAdministrative Agent, in for the good faith judgment ratable benefit of the BuyerLenders, a non-refundable fee in an amount equal to one-quarter of one percent (i0.25%) result in the loss of, or jeopardize, the attorney-client, attorney work product or any other similar legal privilege, (ii) result in a breach of the terms and conditions of any Contract to which the Company or any Affiliate thereof is a party or otherwise bound, or (iii) violate applicable Law. If the Sellers’ Representative has any objections to any Earnout Statement, the Sellers’ Representative shall deliver to the Buyer a written statement setting forth its objections thereto (an “Earnout Objections Statement”) with reasonable supporting detail as to any such disputed items. If an Earnout Objections Statement is not delivered to the Buyer within thirty (30) days after delivery amount of the Earnout Statement to for which the Sellers’ Representative, such Earnout Statement Borrower has requested disbursement. Such fee shall be final, binding and non-appealable on the parties hereto and all other Persons. If an Earnout Objections Statement is timely delivered, the Sellers’ Representative and the Buyer deemed earned when received; (vi) The Borrower shall negotiate in good faith to resolve any such objections set forth therein, but if they do not reach a final resolution within thirty (30) days after the delivery of such Earnout Objections Statement, the Sellers’ Representative and the Buyer shall submit such dispute to an independent regionally recognized public accounting firm agreed upon by Buyer and Sellers’ Representative in writing (who shall not have any material relationship with the Sellers or Buyer or its Subsidiaries) (the “Accounting Firm”), provided that if the Sellers’ Representative and the Buyer cannot agree upon the Accounting Firm promptly following the end of the thirty (30) day period after the delivery of an Earnout Objections Statement, either one of them may request that the New York City office of the American Arbitration Association (the “AAA”) select the Accounting Firm (who shall not have any material relationship with the Sellers or the Buyer or its Subsidiaries). The Accounting Firm shall make a determination of any matters submitted to it pursuant to the terms hereof, and any such determination made by the Accounting Firm shall be final, conclusive and binding on all parties hereto and all other Persons. The parties will cooperate with the Accounting Firm during the term of its engagement, including by providing or causing to be provided to the Accounting Firm such information or documentation as Administrative Agent, for its benefit and the Accounting Firm may benefit of the Lenders, any endorsements reasonably request If requested by the Accounting Firm is engaged pursuant Administrative Agent to the terms hereof, the parties Title Policy; and (vii) The Borrower shall enter into a customary engagement letter with such Accounting Firm, and the Sellers, on the one hand, and the Buyer, on the other hand, shall each agree to pay one-half have satisfied all of the fees and expenses of such Accounting Firm (and, if applicable, the AAA). (c) No later than the date that is ten (10) Business Days following the final and conclusive determination of the Target Revenue Percentages for the Earnout Period pursuant conditions to Section 2.4(b) hereof, if such Target Revenue Percentages shall exceed the thresholds for the making of any payment in respect of such Earnout Period pursuant to the Earnout Principles, and subject to the terms disbursement set forth in this Agreement (including the terms set forth in Article VI hereof), the Buyer shall pay, or cause to be paid, to the Sellers the amount required to be paid by the Buyer to the Sellers pursuant to Section 2.4(a) hereof, such payment to be made by wire transfer of immediately available funds to such account or accounts as the Sellers may designate to the Buyer in writing, such payments to be made to each Seller based on the Pro Rata Share thereof. The right of the Sellers to receive any payment pursuant to the Earnout Principles is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Sellers only the rights of a general unsecured creditor of the Buyer under applicable Law), (ii) will not be represented by any form of certificate or instrument, (iii) does not give the Sellers’ Representative, the Sellers or any other Person any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Buyer’s equity securities, and (iv) is not redeemable6.2. (d) After the Closing Date, the Buyer shall: (i) cause the Company to maintain books and records for the Company in a manner intended to enable the Buyer to accurately determine the amount of Target Revenue Percentages during the Earnout Period, and (ii) not, directly or indirectly, take any action in bad faith for the purpose of circumventing or reducing the Earn-Out Payment. (e) All amounts paid by the Buyer pursuant to Section 2.4(a) shall be treated by the parties as an adjustment to the purchase price paid by the Buyer hereunder in respect of the Interests acquired pursuant to the terms hereof. (f) For the avoidance of doubt, the obligation of Buyer to make any payments pursuant to Section 2.4 shall not be contingent or conditioned upon the continuing employment or service of any Person (including the Sellers).

Earnout. The Sellers shall be eligible to receive the Earnout Amount from the Purchaser on the terms set forth in this Section 2.08. (a) Subject The Purchaser shall use its reasonable best efforts to deliver to the terms Sellers as promptly as practicable after December 31, 2015 (and, in any event, no later than April 14, 2016) true and conditions complete copies of the audited consolidated balance sheets of the Purchaser for the fiscal year ended as of December 31, 2015, and the related audited consolidated statements of income, equity and cash flows (the “2015 Financial Statements”) and a written statement setting forth the Purchaser’s calculation, together with reasonable supporting detail, of the Earnout Amount (the “Initial Earnout Statement”). For purposes of this Section 2.42.08, Adjusted EBITDA will be calculated in accordance with the Buyer may become obligated accounting principles and practices used by the Companies prior to pay an Earn-Out Payment the date hereof; provided that revenue recognition of the Companies and the Company Subsidiaries will be calculated in accordance with the updated revenue recognition principles (percentage of completion) of the Companies to Sellers as provided the extent those updated principles are used in Schedule 2.4 preparation of this Agreement (the “Earnout Principles”). The Earnout Principles are hereby incorporated by reference into this Agreement and shall be deemed to be included in and a part of this Agreement2015 Financial Statements. (b) Not less than ninety Throughout the period following receipt by the US Seller of the Initial Earnout Statement until the determination of the Final Earnout Statement, the Purchaser, the Companies and the Company Subsidiaries shall permit the US Seller and its Representatives reasonable access (90) days following with the Earnout Date (as defined in the Earnout Principlesright to make copies), the Buyer shall prepare and deliver to the Sellers’ Representative a statement (an “Earnout Statement”) that sets forth in reasonable detail its calculation of the Target Revenue Percentages (as defined in the Earnout Principles) for the Earnout Period. In the event S▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (i) dies during the Earnout Period, or (ii) is no longer employed by the Buyer during the Earnout Period then, in the case of clause (i), B▇▇▇▇ ▇▇▇▇▇▇▇▇, and, in the case of clause (ii), the Sellers’ Representative, shall, as applicable, be permitted reasonable access during normal business hours upon reasonable advance notice notice, to review the Company’s relevant financial books and records relating of the Purchaser, the Companies and the Company Subsidiaries for the purposes of the review and objection right contemplated herein, together with reasonable access to the determination of the Earnout, subject to the proviso in the following sentence. Sellers’ Representative and its accountants shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s books and records used in individuals responsible for the preparation of the Initial Earnout Statement, provided that Statement and the Sellers’ Representative 2015 Financial Statements (including the independent auditors of the Companies) in order to respond to the inquiries of the US Seller and its accountants shall not have access to any such books or records if the provision thereof would, in the good faith judgment of the Buyer, (i) result in the loss of, or jeopardize, the attorney-client, attorney work product or any other similar legal privilege, (ii) result in a breach of the terms and conditions of any Contract to which the Company or any Affiliate thereof is a party or otherwise bound, or (iii) violate applicable Law. If the Sellers’ Representative has any objections to any Earnout Statement, the Sellers’ Representative shall deliver to the Buyer a written statement setting forth its objections thereto (an “Earnout Objections Statement”) with reasonable supporting detail as to any such disputed items. If an Earnout Objections Statement is not delivered to the Buyer within thirty (30) days after delivery of the Earnout Statement to the Sellers’ Representative, such Earnout Statement shall be final, binding and non-appealable on the parties hereto and all other Persons. If an Earnout Objections Statement is timely delivered, the Sellers’ Representative and the Buyer shall negotiate in good faith to resolve any such objections set forth therein, but if they do not reach a final resolution within thirty (30) days after the delivery of such Earnout Objections Statement, the Sellers’ Representative and the Buyer shall submit such dispute to an independent regionally recognized public accounting firm agreed upon by Buyer and Sellers’ Representative in writing (who shall not have any material relationship with the Sellers or Buyer or its Subsidiaries) (the “Accounting Firm”), provided that if the Sellers’ Representative and the Buyer cannot agree upon the Accounting Firm promptly following the end of the thirty (30) day period after the delivery of an Earnout Objections Statement, either one of them may request that the New York City office of the American Arbitration Association (the “AAA”) select the Accounting Firm (who shall not have any material relationship with the Sellers or the Buyer or its Subsidiaries). The Accounting Firm shall make a determination of any matters submitted to it pursuant to the terms hereof, and any such determination made by the Accounting Firm shall be final, conclusive and binding on all parties hereto and all other Persons. The parties will cooperate with the Accounting Firm during the term of its engagement, including by providing or causing to be provided to the Accounting Firm such information or documentation as the Accounting Firm may reasonably request If the Accounting Firm is engaged pursuant to the terms hereof, the parties shall enter into a customary engagement letter with such Accounting Firm, and the Sellers, on the one hand, and the Buyer, on the other hand, shall each agree to pay one-half of the fees and expenses of such Accounting Firm (and, if applicable, the AAA)Representatives related thereto. (c) No later than The US Seller shall deliver to the date Purchaser by the Objection Deadline Date either a notice indicating that it accepts the Initial Earnout Statement (which shall be a Notice of Acceptance for purposes of this Section 2.08), or a detailed statement describing its objections to the Initial Earnout Statement (which shall be a Notice of Disagreement for purposes of this Section 2.08). If the US Seller timely delivers a Notice of Disagreement, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute (and such matters shall be Disputed Items for purposes of this Section 2.08). Any component of the calculations set forth in the Initial Earnout Statement that is ten not the subject of a timely delivered Notice of Disagreement shall be final and binding upon the parties hereto, unless the resolution of any such Disputed Item affects an undisputed component of the Initial Earnout Statement, in which case such undisputed component shall, notwithstanding the failure to object to such component in the Notice of Disagreement, be considered a “Disputed Item” to the extent affected by such resolved Disputed Item. (10d) The dispute resolution procedures of Section 2.06(d) shall apply to the Final Earnout Statement, mutatis mutandis. (e) The Final Earnout Statement shall be final and binding upon the parties hereto for the purposes of this Agreement upon the earliest to occur of: (i) the delivery by the US Seller of a Notice of Acceptance or the failure of the US Seller to deliver a Notice of Disagreement by the Objection Deadline Date with respect to the Initial Earnout Statement; (ii) the resolution of all Disputed Items by the US Seller and the Purchaser pursuant to Section 2.08(d); and (iii) the resolution of all Unresolved Objections pursuant to Section 2.08(d) by the Neutral Accountant. Within five (5) Business Days following after the Final Earnout Statement becomes final and conclusive determination of binding upon the Target Revenue Percentages for parties hereto, if the Earnout Period pursuant Amount is a positive amount, then the Purchaser shall pay to Section 2.4(b) hereof, if such Target Revenue Percentages shall exceed the thresholds for the making of any payment in respect of such Earnout Period pursuant Sellers an amount equal to the Earnout Principles, and subject to the terms set forth in this Agreement (including the terms set forth in Article VI hereof), the Buyer shall pay, or cause to be paid, to the Sellers the amount required to be paid by the Buyer to the Sellers pursuant to Section 2.4(a) hereof, such payment to be made Amount by wire transfer of immediately available funds to such account or accounts as the Sellers may designate to the Buyer in writing, such payments to be made to each Seller based on the Pro Rata Share thereof. The right of the Sellers to receive any payment pursuant to the Earnout Principles is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Sellers only the rights of a general unsecured creditor of the Buyer under applicable Law), (ii) will not be represented by any form of certificate or instrument, (iii) does not give the Sellers’ Representative, the Sellers or any other Person any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Buyer’s equity securities, and (iv) is not redeemablePurchase Price Bank Account. (d) After the Closing Date, the Buyer shall: (i) cause the Company to maintain books and records for the Company in a manner intended to enable the Buyer to accurately determine the amount of Target Revenue Percentages during the Earnout Period, and (ii) not, directly or indirectly, take any action in bad faith for the purpose of circumventing or reducing the Earn-Out Payment. (e) All amounts paid by the Buyer pursuant to Section 2.4(a) shall be treated by the parties as an adjustment to the purchase price paid by the Buyer hereunder in respect of the Interests acquired pursuant to the terms hereof. (f) For the avoidance of doubt, the obligation of Buyer to make any payments pursuant to Section 2.4 shall not be contingent or conditioned upon the continuing employment or service of any Person (including the Sellers).