Common use of Earnout Clause in Contracts

Earnout. (i) The Sellers will be entitled to receive a contingent purchase price payment of up to $1,000,000 (the "EARNOUT") in accordance with the provisions of this section 2(e). The Earnout shall be payable with respect to the Company's fiscal year ending December 31, 1998 and the amount of the Earnout payment for such fiscal year will be equal to two times the amount (if any) by which the Company's Adjusted EBITAM for such fiscal exceeds $2,200,000; PROVIDED, HOWEVER, that in no event shall the Earnout amount for such fiscal year be more than $1,000,000. The amount of the Earnout to be received by each Seller shall be the Seller's Company Pro Rata Share thereof. (ii) Within a reasonable time after the conclusion of the fiscal year ending December 31, 1998, but no later than 30 days following the end of such fiscal year, the Purchaser shall deliver to the Sellers' Representative a written notice which shall set forth an estimate of the amount of the Company's Adjusted EBITAM for such fiscal year and an estimate of the Earnout (if any) earned and all calculations made in the determination of such amounts (the "DETERMINATION NOTICE"). The chief financial officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Determination Notice are true and correct to the best of his knowledge and belief. (iii) The Earnout shall be payable as follows. 75% of the Earnout (if any) for any such fiscal year will be paid within three business days of the Sellers' Representative's receipt of the Determination Notice, by wire transfer of immediately available funds to an account or accounts designated by the Sellers' Representative in writing. The remaining Earnout (if any) will be paid upon the final determination of the Adjusted EBITAM Statement for the fiscal year ending December 31, 1998 in accordance with this section 2(e), by wire transfer of immediately available funds to an account or accounts designated by the Sellers' Representative in writing. If the amount of the Earnout that is ultimately determined to be payable pursuant to section 2(e)(vi) is less than the amount paid based upon the Determination Notice, then the Sellers shall repay the difference within three business days after such determination. (iv) For purposes of this Agreement, "ADJUSTED EBITAM" for the Company's fiscal year ending December 31, 1998 means the unaudited net income (excluding extraordinary gains or losses) of the Company (including IMP) for the twelve months ending on the last day of such fiscal year, PLUS (A) any interest on indebtedness and any financing and related fees and expenses deducted in determining net income, (B) all fees or expenses incurred in connection with the transactions contemplated by this Agreement deducted in determining net income, (C) income Taxes deducted in determining net income, (D) any amortization to the extent attributable to the purchase accounting "write-up" resulting from the transactions contemplated hereby and deducted in determining net income, (E) management or other fees charged by the Purchaser and/or its Affiliates and (F) expenses of a non-recurring nature that may occur subsequent to the Closing Date as mutually agreed upon by the Purchaser and the Sellers' Representative. (v) Except as otherwise expressly provided herein, any amount or calculation to be made in connection with the Earnout shall be determined or made (A) in accordance with GAAP applied in a manner consistent with the same accounting principles and methodologies used in the preparation of the Financial Statements, and (B) using the same revenue, income and expense recognition policies and practices as have been used by the Company prior to the Closing. (vi) Within 90 days following the Closing, the Purchaser at its expense shall prepare and deliver to the Sellers' Representative a statement of the actual Adjusted EBITAM of the Company for such fiscal year (the "ADJUSTED EBITAM STATEMENT"). The chief financial officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Adjusted EBITAM Statement are true and correct to the best of his knowledge and belief. During the 30 days immediately following receipt of the Adjusted EBITAM Statement by the Sellers' Representative, the Sellers' Representative and his accountants shall be entitled to review the Adjusted EBITAM Statement and any working papers, trial balances and similar materials relating to the Adjusted EBITAM Statement prepared by the Purchaser or its accountants, and the Purchaser shall provide the Sellers' Representative and his accountants with timely access, during normal business hours, to the personnel, properties, books and records of the Company. The Adjusted EBITAM Statement shall become final and binding upon the parties on the 31st day following delivery thereof unless the Sellers' Representative gives written notice to the Purchaser of his disagreement with the Adjusted EBITAM Statement (a "NOTICE OF DISAGREEMENT WITH ADJUSTED EBITAM STATEMENT") prior to such date. Any Notice of Disagreement With Adjusted EBITAM Statement shall specify in reasonable detail the nature of any disagreement so asserted. If a timely Notice of Disagreement With Adjusted EBITAM Statement is received by the Purchaser with respect to the Adjusted EBITAM Statement, then the Adjusted EBITAM Statement (as revised in accordance with clause (A) or (B) below), shall become final and binding upon the Parties on the earlier of (A) the date the Purchaser and the Sellers' Representative resolve in writing any differences they have with respect to any matter specified in a Notice of Disagreement With Adjusted EBITAM Statement, or (B) the date any matters in dispute are finally resolved in writing by the Accounting Firm in the manner described below (the date on which the Adjusted EBITAM Statement so becomes final and binding being hereinafter referred to as the "FINAL ADJUSTED EBITAM DETERMINATION DATE"). During the 30 days immediately following the delivery of any Notice of Disagreement With Adjusted EBITAM Statement, the Purchaser and the Sellers' Representative shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in such Notice of Disagreement With Adjusted EBITAM Statement. During such period, the Sellers' Representative and his accountants shall each have access to the Company's working papers, trial balances and similar materials (including the working papers, trial balances and similar materials of the Company's accountants) prepared in connection with the Purchaser's preparation of the Adjusted EBITAM Statement. At the end of such 30-day period, the Sellers' Representative and the Purchaser shall submit to an independent "Big 6" public accounting firm (the "ACCOUNTING FIRM") for review and resolution any and all matters which remain in dispute and which were included in any Notice of Disagreement With Adjusted EBITAM Statement (it being understood that the Accounting Firm shall act as an arbitrator to determine, based solely on presentations by the Purchaser and the Sellers' Representative (and not by independent review), only those matters which remain in dispute), and the Accounting Firm shall reach a final, binding resolution of all matters which remain in dispute, which final resolution shall be (W) in writing, (X) furnished to the Purchaser and the Sellers' Representative as soon as practicable after the items in dispute have been referred to the Accounting Firm, (Y) made in accordance with this Agreement, and (Z) conclusive and binding upon the Parties to this Agreement and not subject to collateral attack for any reason. The Adjusted EBITAM Statement, with any adjustments necessary to reflect the Accounting Firm's resolution of the matters in dispute, shall become final and binding on the Parties on the date the Accounting Firm delivers its final resolution to the Parties. The Accounting Firm shall be mutually selected by the Purchaser and the Sellers' Representative, or, if the Purchaser and the Sellers' Representative cannot so agree within the 30-day period referred to above, by lot from among the independent "Big 6" public accounting firms (after excluding the Purchaser's independent public accountants) willing to act. Each Party shall pay its own costs and expenses incurred in connection with such arbitration, provided that the fees and expenses of the Accounting Firm shall be borne as follows: (A) if the Accounting Firm resolves all of the remaining objections in favor of the Purchaser (the amount of the Earnout so determined is referred to herein as the "EARNOUT LOW AMOUNT"), the Sellers will be responsible for all of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share); (B) if the Accounting Firm resolves all of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as the "EARNOUT HIGH AMOUNT"), the Purchaser will be responsible for all of the fees and expenses of the Accounting Firm; and (C) if the Accounting Firm resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as "EARNOUT ACTUAL AMOUNT"), the Sellers will be responsible for that fraction of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share) equal to (i) the difference between the Earnout High Amount and the Earnout Actual Amount over (ii) the difference between the Earnout High Amount and the Earnout Low Amount, and the Purchaser will be responsible for the remainder of the fees and expenses. (vii) If the Purchaser has determined that any remaining Earnout payment is payable with respect to the fiscal year ending December 31, 1998, the Purchaser shall pay such remaining Earnout payment when it delivers the Adjusted EBITAM Statement for such fiscal year (even if the Sellers' Representative disputes the amount of such Earnout payment as determined by the Purchaser). If the amount of the Earnout payment is in dispute, and the Earnout payment that is ultimately determined to be payable pursuant to section 2(e)(vi) is (A) greater than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Purchaser shall pay the difference within three business days after such determination, or (B) less than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Sellers shall repay, the difference within three business days after such determination. Payment of any remaining Earnout pursuant to clause (A) of this paragraph (vii) shall be made by the Purchaser to the Sellers by wire transfer of immediately available funds to the account or accounts designated in writing by the Sellers' Representative. Payment of any amounts payable to the Purchaser pursuant to clause (B) of this paragraph (vii) shall be made by wire transfer of immediately available funds to the account designated in writing by the Purchaser.

Earnout. (a) Subject to Section 2.8(d), a total number of shares of Parent Common Stock equal to up to (i) The Sellers will be entitled to receive a contingent purchase price payment of up to $1,000,000 156,000,000 divided by (ii) the Trust Value Per Share (the "EARNOUT"“Earnout Shares”), divided into two tranches, the first of which shall consist of $50,000,000 divided by the Trust Value Per Share of the total Earnout Shares (the “First Tranche”) and the second of which shall consist of $106,000,000 divided by the Trust Value Per Share of the total Earnout Shares (the “Second Tranche”) (each, a “Tranche”), shall be issuable to the Company Stockholders subject to and in accordance with the provisions terms and conditions of this section 2(e). The Earnout shall be payable with respect to the Company's fiscal year ending December 31, 1998 and the amount of the Earnout payment for such fiscal year will be equal to two times the amount (if any) by which the Company's Adjusted EBITAM for such fiscal exceeds $2,200,000; PROVIDED, HOWEVER, that in no event shall the Earnout amount for such fiscal year be more than $1,000,000. The amount of the Earnout to be received by each Seller shall be the Seller's Company Pro Rata Share thereofSection 2.9. (iib) Within a reasonable time Not more than ten (10) Business Days after the conclusion of the fiscal year ending December 31, 1998, but no later than 30 days following the end of such fiscal year, the Purchaser shall deliver to the Sellers' Representative a written notice which shall set forth an estimate of the amount of the Company's Adjusted EBITAM for such fiscal year and an estimate of the Earnout (if any) earned and all calculations made in the determination of such amounts (the "DETERMINATION NOTICE"). The chief financial officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Determination Notice are true and correct to the best of his knowledge and belief. (iii) The Earnout shall be payable as follows. 75% of the Earnout (if any) for any such fiscal year will be paid within three business days of the Sellers' Representative's receipt of the Determination Notice, by wire transfer of immediately available funds to an account or accounts designated by the Sellers' Representative in writing. The remaining Earnout (if any) will be paid upon the final determination of the Adjusted EBITAM Statement Parent has filed its Annual Report on Form 10-K for the fiscal year ending ended December 31, 1998 2009, Parent shall notify the Escrow Representative of and shall publicly disclose in a Form 8-K filed with the SEC of its determination of the Earnout EBITDA for the fiscal year ended December 31, 2009. If the Earnout EBITDA for the fiscal year ended December 31, 2009, is equal to or greater than $55,000,000 (the achievement of the foregoing, the “First Target”), then within ten (10) Business Days, or twenty (20) Business Days if the Company has made any election of the type described in Section 2.9(f), after the public disclosure of the Earnout EBITDA for such period, Parent shall issue the First Tranche of the Earnout Shares (less any Earnout Shares for which an offer made by the Company pursuant to Section 2.9(f) has been accepted), which shares (the “First Target Shares”) and cash, if any, shall be allocated among the Company Stockholders in accordance with this section 2(eSection 2.9(g) hereof. Except as specified in Section 2.9(e), by wire transfer if the First Target is not achieved upon completion of immediately available funds to an account or accounts designated by the Sellers' audit of Parent’s financial statements for 2009, the First Target Shares shall not be issuable. (c) Not more than ten (10) Business Days after Parent has filed its Annual Report on Form 10-K for the fiscal year ended December 31, 2010, Parent shall notify the Escrow Representative of and shall publicly disclose in writinga Form 8-K filed with the SEC of its determination of the Earnout EBITDA for the fiscal year ended December 31, 2010. If the amount Earnout EBITDA for the fiscal year ended December 31, 2010, is equal to or greater than $78,000,000 (the achievement of the foregoing, the “Second Target”), then within ten (10) Business Days, or twenty (20) Business Days if the Company has made any election of the type described in Section 2.9(f), after the public disclosure of the Earnout that is ultimately determined to be payable EBITDA for such period, Parent shall issue the Second Tranche of the Earnout Shares (less any Additional First Tranche Earnout Shares issued in accordance with Section 2.9(d) and less any Earnout Shares for which an offer made by the Company pursuant to section 2(e)(viSection 2.9(f) has been accepted), which shares (the “Second Target Shares”) and cash, if any, shall be allocated among the Company Stockholders in accordance with Section 2.9(g) hereof. Except as specified in Section 2.9(e), if the Second Target is less than not achieved upon completion of the amount paid based upon audit of Parent’s financial statements for 2010, the Determination Notice, then the Sellers Second Target Shares shall repay the difference within three business days after such determinationnot be issuable. (ivd) For purposes of this AgreementIn addition to the foregoing, "ADJUSTED EBITAM" if the Earnout EBITDA for the Company's fiscal year ending ended December 31, 1998 means 2009 is greater than $55,000,000, then for every dollar by which such Earnout EBITDA exceeds $55,000,000 up to a maximum of $80,000,000 of Earnout EBITDA, Parent shall within ten (10) Business Days, or twenty (20) Business Days if the unaudited net income (excluding extraordinary gains or losses) Company has made any election of the Company (including IMP) for type described in Section 2.9(f), after the twelve months ending on the last day public disclosure of such fiscal year, PLUS (A) any interest on indebtedness and any financing and related fees and expenses deducted in determining net income, (B) all fees or expenses incurred in connection with the transactions contemplated by this Agreement deducted in determining net income, (C) income Taxes deducted in determining net income, (D) any amortization to the extent attributable to the purchase accounting "write-up" resulting from the transactions contemplated hereby and deducted in determining net income, (E) management or other fees charged by the Purchaser and/or its Affiliates and (F) expenses of a non-recurring nature that may occur subsequent to the Closing Date as mutually agreed upon by the Purchaser and the Sellers' Representative. (v) Except as otherwise expressly provided herein, any amount or calculation to be made in connection with the Earnout shall be determined or made (A) in accordance with GAAP applied in a manner consistent with the same accounting principles and methodologies used in the preparation of the Financial Statements, and (B) using the same revenue, income and expense recognition policies and practices as have been used by the Company prior to the Closing. (vi) Within 90 days following the Closing, the Purchaser at its expense shall prepare and deliver to the Sellers' Representative a statement of the actual Adjusted EBITAM of the Company EBITDA for such fiscal year (the "ADJUSTED EBITAM STATEMENT"). The chief financial officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Adjusted EBITAM Statement are true and correct to the best of his knowledge and belief. During the 30 days immediately following receipt of the Adjusted EBITAM Statement by the Sellers' Representative, the Sellers' Representative and his accountants shall be entitled to review the Adjusted EBITAM Statement and any working papers, trial balances and similar materials relating to the Adjusted EBITAM Statement prepared by the Purchaser or its accountants, and the Purchaser shall provide the Sellers' Representative and his accountants with timely access, during normal business hours, to the personnel, properties, books and records of the Company. The Adjusted EBITAM Statement shall become final and binding upon the parties on the 31st day following delivery thereof unless the Sellers' Representative gives written notice to the Purchaser of his disagreement with the Adjusted EBITAM Statement (a "NOTICE OF DISAGREEMENT WITH ADJUSTED EBITAM STATEMENT") prior to such date. Any Notice of Disagreement With Adjusted EBITAM Statement shall specify in reasonable detail the nature of any disagreement so asserted. If a timely Notice of Disagreement With Adjusted EBITAM Statement is received by the Purchaser with respect to the Adjusted EBITAM Statement, then the Adjusted EBITAM Statement (as revised in accordance with clause (A) or (B) below), shall become final and binding upon the Parties on the earlier of (A) the date the Purchaser and the Sellers' Representative resolve in writing any differences they have with respect to any matter specified in a Notice of Disagreement With Adjusted EBITAM Statement, or (B) the date any matters in dispute are finally resolved in writing by the Accounting Firm in the manner described below (the date on which the Adjusted EBITAM Statement so becomes final and binding being hereinafter referred to as the "FINAL ADJUSTED EBITAM DETERMINATION DATE"). During the 30 days immediately following the delivery of any Notice of Disagreement With Adjusted EBITAM Statement, the Purchaser and the Sellers' Representative shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in such Notice of Disagreement With Adjusted EBITAM Statement. During such period, the Sellers' Representative and his accountants Parent shall each have access to the Company's working papers, trial balances and similar materials (including the working papers, trial balances and similar materials of the Company's accountants) prepared in connection with the Purchaser's preparation of the Adjusted EBITAM Statement. At the end of such 30-day period, the Sellers' Representative and the Purchaser shall submit to an independent "Big 6" public accounting firm (the "ACCOUNTING FIRM") for review and resolution any and all matters which remain in dispute and which were included in any Notice of Disagreement With Adjusted EBITAM Statement (it being understood that the Accounting Firm shall act as an arbitrator to determine, based solely on presentations by the Purchaser and the Sellers' Representative (and not by independent review), only those matters which remain in dispute), and the Accounting Firm shall reach a final, binding resolution of all matters which remain in dispute, which final resolution shall be (W) in writing, (X) furnished to the Purchaser and the Sellers' Representative as soon as practicable after the items in dispute have been referred to the Accounting Firm, (Y) made in accordance with this Agreement, and (Z) conclusive and binding upon the Parties to this Agreement and not subject to collateral attack for any reason. The Adjusted EBITAM Statement, with any adjustments necessary to reflect the Accounting Firm's resolution of the matters in dispute, shall become final and binding on the Parties on the date the Accounting Firm delivers its final resolution to the Parties. The Accounting Firm shall be mutually selected by the Purchaser and the Sellers' Representative, or, if the Purchaser and the Sellers' Representative cannot so agree within the 30-day period referred to above, by lot from among the independent "Big 6" public accounting firms (after excluding the Purchaser's independent public accountants) willing to act. Each Party shall pay its own costs and expenses incurred in connection with such arbitration, provided that the fees and expenses of the Accounting Firm shall be borne as follows: (A) if the Accounting Firm resolves all of the remaining objections in favor of the Purchaser (the amount of the Earnout so determined is referred to herein as the "EARNOUT LOW AMOUNT"), the Sellers will be responsible for all of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share); (B) if the Accounting Firm resolves all of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as the "EARNOUT HIGH AMOUNT"), the Purchaser will be responsible for all of the fees and expenses of the Accounting Firm; and (C) if the Accounting Firm resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as "EARNOUT ACTUAL AMOUNT"), the Sellers will be responsible for that fraction of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share) issue additional First Target Shares equal to (i) the difference between the Earnout High Amount and the Earnout Actual Amount over $1 divided by (ii) the difference between Trust Value Per Share (the “Additional First Tranche Earnout High Amount and the Shares”) (less any Earnout Low Amount, and the Purchaser will be responsible Shares for the remainder of the fees and expenses. (vii) If the Purchaser has determined that any remaining Earnout payment is payable with respect to the fiscal year ending December 31, 1998, the Purchaser shall pay such remaining Earnout payment when it delivers the Adjusted EBITAM Statement for such fiscal year (even if the Sellers' Representative disputes the amount of such Earnout payment as determined by the Purchaser). If the amount of the Earnout payment is in dispute, and the Earnout payment that is ultimately determined to be payable pursuant to section 2(e)(vi) is (A) greater than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Purchaser shall pay the difference within three business days after such determination, or (B) less than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Sellers shall repay, the difference within three business days after such determination. Payment of any remaining Earnout pursuant to clause (A) of this paragraph (vii) shall be which an offer made by the Purchaser to the Sellers by wire transfer of immediately available funds to the account or accounts designated in writing by the Sellers' Representative. Payment of any amounts payable to the Purchaser Company pursuant to clause (BSection 2.9(f) of this paragraph (vii) has been accepted), which shares and cash, if any, shall be made by wire transfer of immediately available funds to allocated among the account designated Company Stockholders in writing by the Purchaseraccordance with Section 2.9(g) hereof.

Earnout. (a) Subject to all of the following provisions of this Section 1.2, Purchaser shall cause the Company to pay Seller in cash, at the time or times specified in Section 1.2(f), the following amounts (each, an “Earnout Payment”): (i) The Sellers with respect to each Initial Earnout Period, an amount equal to the product of (A) $*** multiplied by (B) the number of gallons of DF Product Sold by the Company during such Initial Earnout Period; and (ii) with respect to each Subsequent Earnout Period, an amount equal to the product of (A) $*** multiplied by (B) the number of gallons of DF Product Sold by the Company during such Subsequent Earnout Period. (b) Notwithstanding anything in this Section 1.2 to the contrary, in no event shall Purchaser be required to cause the Company to make any Earnout Payment to Seller pursuant to Section 1.2(a) if the sum of all Earnout Payments made to Seller pursuant to this Section 1.2, plus the sum of all amounts setoff as indemnification of Purchaser pursuant to Section 9.7, would exceed thirty-five million dollars ($35,000,000). At its election, Purchaser may at any time satisfy all of its obligations under this Section 1.2 by the payment to Seller in cash of an amount equal to $35,000,000 less the sum of all previous payments under this Section 1.2, any amount set forth in a Claim Notice delivered in good faith that is pending final determination in accordance with Article IX hereof (which will be entitled paid in accordance of the terms of Article IX to receive the extent resolved in favor of Seller), and all amounts setoff as indemnification of Purchaser pursuant to Section 9.7. (c) If, during the Earnout Term, the Company makes any capital investments in the Geismar Facility that result in an increase in the Geismar Facility production capacity above seventy-five million (75,000,000) gallons per year, then the total number of gallons of DF Product that may be utilized in the calculation of an Earnout Payment under Section 1.2(a) shall not exceed 18.75 million gallons of DF Product for any calendar quarter (or a contingent purchase price payment proportionately lesser amount for any Earnout Period involving less than a calendar quarter). (d) If, during the Earnout Term, Purchaser determines that an RFS2 Event has occurred, then Purchaser shall provide written notice thereof and a reasonably detailed statement of up the reasons for such determination to Seller and, for a period of 18 months immediately following such RFS2 Event, the amount per gallon to be paid pursuant to Section 1.2(a) shall be reduced from $*** per gallon or $*** per gallon, as applicable, to $1,000,000 *** per gallon of DF Product Sold during such period. If Seller objects to Purchaser’s determination, Seller shall deliver to Purchaser a statement setting forth a reasonably detailed statement of its good faith objections thereto (an “RFS2 Objection Statement”). Purchaser and Seller shall negotiate in good faith to resolve any dispute as to whether an RFS2 Event occurred. If Purchaser and Seller do not reach a final agreement within thirty (30) days after the "EARNOUT"delivery of the RSF2 Objection Statement, Purchaser or Seller may submit such dispute to the Referee. The parties shall furnish to the Referee Purchaser’s notice that an RFS2 Event has occurred and the RFS2 Objection Statement, and (from time to time as requested by the Referee) such other information and documents as the Referee may reasonably request in order for the Referee to decide whether an RFS2 Event has occurred. The Referee shall make such decision and shall deliver a written notice of the Referee’s decision to Purchaser and Seller within thirty (30) days after such matter is referred to the Referee. The Referee’s decision shall be final and binding on and shall not be appealable by the parties hereto. With respect to any Earnout Payments payable pursuant to Section 1.2(a) during the period between the delivery of an RFS2 Objection Statement and delivery of the Referee’s decision, payments shall be made at the $*** per gallon rate. In the event the Referee determines that an RFS2 Event has not occurred, then Purchaser shall, within two (2) Business Days of Referee’s delivery of notice of such determination, cause the Company to wire to an account specified by Seller immediately available funds in an amount equal to the Earnout Payment(s) that would have been paid in the absence of an RFS2 Event, less the amount paid to Seller during such period(s) following Seller’s improper notice of an RFS2 Event. The fees and expenses of the Referee shall be paid by (i) Seller if the Referee determines that an RSF2 Event has occurred contrary to the RFS2 Objection Statement, or (ii) Purchaser if the Referee determines that an RSF2 Event has not occurred contrary to the notice of the RFS2 Event provided by Purchaser. (e) As promptly as practicable following, and in any event by the date which is twenty (20) Business Days following the end of each Earnout Period, Purchaser shall cause the Company to prepare and deliver to Seller a statement certified by an executive officer of the Company setting forth the number of gallons of DF Product Sold during such Earnout Period and Purchaser’s calculation of the Earnout Payment payable with respect to such Earnout Period, such statement to be in the form attached hereto as Exhibit A (each an “Earnout Payment Statement”). Upon receipt from the Company of an Earnout Payment Statement for any given Earnout Period, Seller may request and, if so requested, Purchaser shall cause the Company to provide, such documentation and other information as Seller may reasonably request in support of the information set forth in such Earnout Payment Statement. Except as contemplated by this Agreement, the Earnout Payment Statement and the contents thereof shall be held in strict confidence by Seller and shall not be used by Seller for any purpose other than as set forth herein. Purchaser shall provide prompt notice of any corrections to the Earnout Payment Statement discovered after delivery thereof and Purchaser and Seller shall adjust the amount of any Earnout Payment made prior to the correction, subject to Seller’s right to object in accordance with the provisions of this section 2(e). The Earnout shall be payable with respect to the Company's fiscal year ending December 31, 1998 and the amount of the Earnout payment for such fiscal year will be equal to two times the amount (if any) by which the Company's Adjusted EBITAM for such fiscal exceeds $2,200,000; PROVIDED, HOWEVER, that in no event shall the Earnout amount for such fiscal year be more than $1,000,000. The amount of the Earnout to be received by each Seller shall be the Seller's Company Pro Rata Share thereofSection 1.2. (iif) Within a reasonable time after the conclusion of the fiscal year ending December 31, 1998, but no later than 30 days following the end of such fiscal year, the Purchaser shall deliver to the Sellers' Representative a written notice which shall set forth an estimate of the amount of the Company's Adjusted EBITAM for such fiscal year and an estimate of the Earnout (if any) earned and all calculations made in the determination of such amounts (the "DETERMINATION NOTICE"). The chief financial officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Determination Notice are true and correct to the best of his knowledge and belief. (iii) The Earnout Payments shall be due and payable as follows. 75% of the Earnout (if any) for any such fiscal year will be paid within three business days of the Sellers' Representative's receipt of the Determination Notice, by wire transfer of immediately available funds to an account or accounts designated by the Sellers' Representative in writing. The remaining Earnout (if any) will be paid upon the final determination of the Adjusted EBITAM Statement for the fiscal year ending December 31, 1998 in accordance with this section 2(e), by wire transfer of immediately available funds to an account or accounts designated by the Sellers' Representative in writing. If the amount of the Earnout that is ultimately determined to be payable pursuant to section 2(e)(vi) is less than the amount paid based upon the Determination Notice, then the Sellers shall repay the difference within three business days after such determination. (iv) For purposes of this Agreement, "ADJUSTED EBITAM" for the Company's fiscal year ending December 31, 1998 means the unaudited net income (excluding extraordinary gains or losses) of the Company (including IMP) for the twelve months ending on the last day of such fiscal year, PLUS (A) any interest on indebtedness and any financing and related fees and expenses deducted in determining net income, (B) all fees or expenses incurred in connection with the transactions contemplated by this Agreement deducted in determining net income, (C) income Taxes deducted in determining net income, (D) any amortization to the extent attributable to the purchase accounting "write-up" resulting from the transactions contemplated hereby and deducted in determining net income, (E) management or other fees charged by the Purchaser and/or its Affiliates and (F) expenses of a non-recurring nature that may occur subsequent to the Closing Date as mutually agreed upon by the Purchaser and the Sellers' Representative. (v) Except as otherwise expressly provided herein, any amount or calculation to be made in connection with the Earnout shall be determined or made (A) in accordance with GAAP applied in a manner consistent with the same accounting principles and methodologies used in the preparation of the Financial Statements, and (B) using the same revenue, income and expense recognition policies and practices as have been used by the Company prior to the Closing. (vi) Within 90 days following the Closing, the Purchaser at its expense shall prepare and deliver to the Sellers' Representative a statement of the actual Adjusted EBITAM of the Company for such fiscal year (the "ADJUSTED EBITAM STATEMENT"). The chief financial officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Adjusted EBITAM Statement are true and correct to the best of his knowledge and belief. During the 30 days immediately following receipt of the Adjusted EBITAM Statement by the Sellers' Representative, the Sellers' Representative and his accountants shall be entitled to review the Adjusted EBITAM Statement and any working papers, trial balances and similar materials relating to the Adjusted EBITAM Statement prepared by the Purchaser or its accountants, and the Purchaser shall provide the Sellers' Representative and his accountants with timely access, during normal business hours, to the personnel, properties, books and records of the Company. The Adjusted EBITAM Statement shall become final and binding upon the parties on the 31st day following delivery thereof unless the Sellers' Representative gives written notice to the Purchaser of his disagreement with the Adjusted EBITAM Statement (a "NOTICE OF DISAGREEMENT WITH ADJUSTED EBITAM STATEMENT") prior to such date. Any Notice of Disagreement With Adjusted EBITAM Statement shall specify in reasonable detail the nature of any disagreement so asserted. If a timely Notice of Disagreement With Adjusted EBITAM Statement is received by the Purchaser with respect to the Adjusted EBITAM Statement, then the Adjusted EBITAM Statement (as revised in accordance with clause (A) or (B) below), shall become final and binding upon the Parties on the earlier of (A) the date the Purchaser and the Sellers' Representative resolve in writing any differences they have with respect to any matter specified in a Notice of Disagreement With Adjusted EBITAM Statement, or (B) the date any matters in dispute are finally resolved in writing by the Accounting Firm in the manner described below (the date on which the Adjusted EBITAM Statement so becomes final and binding being hereinafter referred to as the "FINAL ADJUSTED EBITAM DETERMINATION DATE"). During the 30 days immediately following the delivery of any Notice of Disagreement With Adjusted EBITAM Statement, the Purchaser and the Sellers' Representative shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in such Notice of Disagreement With Adjusted EBITAM Statement. During such period, the Sellers' Representative and his accountants shall each have access to the Company's working papers, trial balances and similar materials (including the working papers, trial balances and similar materials of the Company's accountants) prepared in connection with the Purchaser's preparation of the Adjusted EBITAM Statement. At the end of such 30-day period, the Sellers' Representative and the Purchaser shall submit to an independent "Big 6" public accounting firm (the "ACCOUNTING FIRM") for review and resolution any and all matters which remain in dispute and which were included in any Notice of Disagreement With Adjusted EBITAM Statement (it being understood that the Accounting Firm shall act as an arbitrator to determine, based solely on presentations by the Purchaser and the Sellers' Representative (and not by independent review), only those matters which remain in dispute), and the Accounting Firm shall reach a final, binding resolution of all matters which remain in dispute, which final resolution shall be (W) in writing, (X) furnished to the Purchaser and the Sellers' Representative as soon as practicable after the items in dispute have been referred to the Accounting Firm, (Y) made in accordance with this Agreement, and (Z) conclusive and binding upon the Parties to this Agreement and not subject to collateral attack for any reason. The Adjusted EBITAM Statement, with any adjustments necessary to reflect the Accounting Firm's resolution of the matters in dispute, shall become final and binding on the Parties on the date the Accounting Firm delivers its final resolution to the Parties. The Accounting Firm shall be mutually selected by the Purchaser and the Sellers' Representative, or, if the Purchaser and the Sellers' Representative cannot so agree within the 30-day period referred to above, by lot from among the independent "Big 6" public accounting firms (after excluding the Purchaser's independent public accountants) willing to act. Each Party shall pay its own costs and expenses incurred in connection with such arbitration, provided that the fees and expenses of the Accounting Firm shall be borne as follows: (Ai) If Seller has any good faith objections to an Earnout Payment Statement, Seller shall deliver to Purchaser a statement setting forth in reasonable detail its good faith objections thereto (an “Earnout Objections Statement”). The Earnout Objections Statement, if the Accounting Firm resolves all any, shall contain a reasonably detailed description of the remaining basis for the objections in favor of the Purchaser (the amount of the Earnout so determined is referred to herein as the "EARNOUT LOW AMOUNT"), the Sellers will be responsible for all of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share); (B) if the Accounting Firm resolves all of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as the "EARNOUT HIGH AMOUNT"), the Purchaser will be responsible for all of the fees and expenses of the Accounting Firm; and (C) if the Accounting Firm resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as "EARNOUT ACTUAL AMOUNT"), the Sellers will adjustments that Seller believes should be responsible for that fraction of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share) equal to (i) the difference between the Earnout High Amount and the Earnout Actual Amount over (ii) the difference between the Earnout High Amount and the Earnout Low Amount, and the Purchaser will be responsible for the remainder of the fees and expenses. (vii) If the Purchaser has determined that any remaining Earnout payment is payable with respect made to the fiscal year ending December 31, 1998, the Purchaser shall pay such remaining Earnout payment when it delivers the Adjusted EBITAM Statement for such fiscal year (even if the Sellers' Representative disputes the amount of such Earnout payment as determined by the Purchaser). If the amount of the Earnout payment is in dispute, and the Earnout payment that is ultimately determined to be payable pursuant to section 2(e)(vi) is (A) greater than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Purchaser shall pay the difference within three business days after such determination, or (B) less than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Sellers shall repay, the difference within three business days after such determination. Payment of any remaining Earnout pursuant to clause (A) of this paragraph (vii) shall be made by the Purchaser to the Sellers by wire transfer of immediately available funds to the account or accounts designated in writing by the Sellers' Representative. Payment of any amounts payable to the Purchaser pursuant to clause (B) of this paragraph (vii) shall be made by wire transfer of immediately available funds to the account designated in writing by the Purchaser.Earnout

Earnout. (ia) The Sellers will As part of the Purchase Price, the Buyer shall pay or cause to be entitled paid to receive a contingent purchase price payment of up to $1,000,000 (the "EARNOUT") Seller the Earnout Amount as determined in accordance with this Section 2.9 (the provisions “Earnout Payment”), upon the later to occur of this section 2(e(x) thirty-one (31) days after the delivery by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be payable with respect to the Company's fiscal year ending December 31, 1998 and the amount of the Earnout payment for such fiscal year will be equal to two times the amount (if any) by which the Company's Adjusted EBITAM for such fiscal exceeds $2,200,000; PROVIDED, HOWEVER, that in no event shall the Earnout amount for such fiscal year be more than $1,000,000. The amount of the Earnout to be received by each Seller shall be the Seller's Company Pro Rata Share thereof. (ii) Within a reasonable time after the conclusion of the fiscal year ending December 31, 1998, but no later than 30 days following the end of such fiscal year, the Purchaser shall deliver to the Sellers' Representative a written notice which shall set forth an estimate of the amount of the Company's Adjusted EBITAM for such fiscal year and an estimate of the Earnout (if any) earned and all calculations made in the determination of such amounts (the "DETERMINATION NOTICE"). The chief financial officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Determination Notice are true and correct to the best of his knowledge and belief. (iii) The Earnout shall be payable as follows. 75% of the Earnout (if any) for any such fiscal year will be paid within three business days of the Sellers' Representative's receipt of the Determination Notice, by wire transfer of immediately available funds pursuant to an account or accounts designated wire transfer instructions provided by the Sellers' Representative in writing. Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid. (b) The remaining Earnout (if any) will be paid upon the final determination of the Adjusted EBITAM Statement for the fiscal year ending December 31, 1998 in accordance with this section 2(e), by wire transfer of immediately available funds to an account or accounts designated by the Sellers' Representative in writing. If the amount of the Earnout that Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is ultimately determined to $25.0 million, the Earnout Amount would be payable pursuant to section 2(e)(vi) is less than the amount paid based upon the Determination Notice, then the Sellers shall repay the difference within three business days after such determination$56.5 million (2.26 x $25.0 million). (ivc) For purposes Within ninety (90) days following each of this Agreement, "ADJUSTED EBITAM" for the Company's fiscal year ending December 31, 1998 means the unaudited net income (excluding extraordinary gains or losses) of the Company (including IMP) for the twelve months ending on the last day of such fiscal year2012 and December 31, PLUS (A) any interest on indebtedness and any financing and related fees and expenses deducted in determining net income, (B) all fees or expenses incurred in connection with the transactions contemplated by this Agreement deducted in determining net income, (C) income Taxes deducted in determining net income, (D) any amortization to the extent attributable to the purchase accounting "write-up" resulting from the transactions contemplated hereby and deducted in determining net income, (E) management or other fees charged by the Purchaser and/or its Affiliates and (F) expenses of a non-recurring nature that may occur subsequent to the Closing Date as mutually agreed upon by the Purchaser and the Sellers' Representative. (v) Except as otherwise expressly provided herein, any amount or calculation to be made in connection with the Earnout shall be determined or made (A) in accordance with GAAP applied in a manner consistent with the same accounting principles and methodologies used in the preparation of the Financial Statements, and (B) using the same revenue, income and expense recognition policies and practices as have been used by the Company prior to the Closing. (vi) Within 90 days following the Closing2013, the Purchaser at its expense Buyer Sub shall prepare and deliver to the Sellers' Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the actual Adjusted EBITAM EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the Company for such fiscal year North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the "ADJUSTED EBITAM STATEMENT"“Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The chief EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Adjusted EBITAM Statement are true and correct to the best of his knowledge and belief. During the 30 days immediately following receipt equivalent or similar position) of the Adjusted EBITAM Statement by the Sellers' Representative, the Sellers' Buyer Sub. (e) The Seller Representative and his accountants shall be entitled to review the Adjusted EBITAM Statement and any working papers, trial balances and similar materials relating to the Adjusted EBITAM Statement prepared by the Purchaser or its accountants, and the Purchaser shall provide the Sellers' Representative and his accountants with timely access, during normal business hours, to the personnel, properties, books and records of the Company. The Adjusted EBITAM Statement shall become final and binding upon the parties on the 31st day following delivery thereof unless the Sellers' Representative gives must give written notice to the Purchaser of his disagreement with Buyer Parent, and the Adjusted EBITAM Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement (a "NOTICE OF DISAGREEMENT WITH ADJUSTED EBITAM STATEMENT") prior to such date. Any Notice of Disagreement With Adjusted EBITAM Statement shall specify Objection Notice”), specifying in reasonable detail the nature Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any disagreement so assertedamounts included within such item will be deemed to be final, binding and conclusive. If a timely the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of Disagreement With Adjusted EBITAM the amounts on the Earnout Statement is received by will be final, binding and conclusive on the Purchaser with respect to Parties. (f) If the Adjusted EBITAM Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Adjusted EBITAM Statement (as revised in accordance with clause (A) or (B) below), shall become final and binding upon the Parties on the earlier of (A) the date the Purchaser Buyer Parent and the Sellers' Seller Representative resolve in writing any differences they have with respect to any matter specified in a Notice of Disagreement With Adjusted EBITAM Statement, or (B) the date any matters in dispute are finally resolved in writing by the Accounting Firm in the manner described below (the date on which the Adjusted EBITAM Statement so becomes final and binding being hereinafter referred to as the "FINAL ADJUSTED EBITAM DETERMINATION DATE"). During the 30 days immediately following the delivery of any Notice of Disagreement With Adjusted EBITAM Statement, the Purchaser and the Sellers' Representative shall seek will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in writing any differences which they may have Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with respect the Appointed Arbiter to any matter specified in facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Notice of Disagreement With Adjusted EBITAM Party to prepare the Earnout Statement. During such period, the Sellers' Representative Earnout Statement Objection Notice and his accountants shall each have access their interpretation of the dispute. The Appointed Arbiter will determine and report to the Company's working papers, trial balances and similar materials (including the working papers, trial balances and similar materials of the Company's accountants) prepared in connection with the Purchaser's preparation of the Adjusted EBITAM Statement. At the end of such 30-day period, the Sellers' Representative Buyer Parent and the Purchaser shall submit to an independent "Big 6" public accounting firm (Seller Representative its determination on the "ACCOUNTING FIRM") remaining disputed items submitted for review and resolution any and all matters which remain in dispute and which were included in any Notice of Disagreement With Adjusted EBITAM Statement (it being understood that the Accounting Firm shall act as an arbitrator to determine, based solely on presentations by the Purchaser and the Sellers' Representative (and not by independent review), only those matters which remain in dispute)such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Accounting Firm shall reach a Appointed Arbiter’s determination will be final, binding resolution of all matters which remain in disputeand conclusive on the Parties, which final resolution shall be (Wexcept to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) in writing, (X) furnished to the Purchaser and the Sellers' Representative as soon as practicable after Seller ( 1/2) will bear equally the items in dispute have been referred to the Accounting Firmfees, (Y) made in accordance with this Agreement, and (Z) conclusive and binding upon the Parties to this Agreement and not subject to collateral attack for any reason. The Adjusted EBITAM Statement, with any adjustments necessary to reflect the Accounting Firm's resolution of the matters in dispute, shall become final and binding on the Parties on the date the Accounting Firm delivers its final resolution to the Parties. The Accounting Firm shall be mutually selected by the Purchaser and the Sellers' Representative, or, if the Purchaser and the Sellers' Representative cannot so agree within the 30-day period referred to above, by lot from among the independent "Big 6" public accounting firms (after excluding the Purchaser's independent public accountants) willing to act. Each Party shall pay its own costs and expenses incurred in connection with such arbitration, provided that the fees and expenses of the Accounting Firm shall be borne as follows:Appointed Arbiter. (Ah) if the Accounting Firm resolves all of the remaining objections in favor of the Purchaser (the amount After delivery of the Earnout so determined is referred to herein as the "EARNOUT LOW AMOUNT")Statement, the Sellers Buyer Sub will be responsible for all provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share); (B) if the Accounting Firm resolves all of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as the "EARNOUT HIGH AMOUNT")Buyer Sub, the Purchaser will be responsible for all of Buyer Parent or the fees and expenses of the Accounting Firm; and Seller (Cas applicable) if the Accounting Firm resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as "EARNOUT ACTUAL AMOUNT"), the Sellers will be responsible for that fraction of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share) equal to (i) to the difference between books and records in their possession or under their control containing information directly relevant to the Earnout High Amount and Statement or the Earnout Actual Amount over Statement Objection Notice (as applicable) and (ii) to the difference between employees or other Representatives responsible for preparing the Earnout High Amount and Statement or the Earnout Low AmountStatement Objection Notice (as applicable). However, and the Purchaser in no event will any Party be responsible for the remainder of the fees and expenses. (vii) If the Purchaser has determined that required to provide access to, or be deemed to have waived any remaining Earnout payment is payable privilege with respect to the fiscal year ending December 31to, 1998any books, the Purchaser shall pay such remaining Earnout payment when records or other information that it delivers the Adjusted EBITAM Statement for such fiscal year (even if the Sellers' Representative disputes the amount of such Earnout payment as determined by the Purchaser). If the amount of the Earnout payment reasonably believes is in dispute, and the Earnout payment that is ultimately determined to be payable pursuant to section 2(e)(vi) is (A) greater than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Purchaser shall pay the difference within three business days after such determination, or (B) less than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Sellers shall repay, the difference within three business days after such determination. Payment of any remaining Earnout pursuant to clause (A) of this paragraph (vii) shall be made by the Purchaser to the Sellers by wire transfer of immediately available funds to the account or accounts designated in writing by the Sellers' Representative. Payment of any amounts payable to the Purchaser pursuant to clause (B) of this paragraph (vii) shall be made by wire transfer of immediately available funds to the account designated in writing by the Purchaserprivileged.

Earnout. (ia) The Sellers will As part of the Purchase Price, the Buyer shall pay or cause to be entitled paid to receive a contingent purchase price payment of up to $1,000,000 (the "EARNOUT") Seller the Earnout Amount as determined in accordance with this Section 2.9 (the provisions “Earnout Payment”), upon the later to occur of this section 2(e(x) thirty-one (31) days after the delivery by the Buyer Sub of the Earnout Statement pursuant to Section 2.9(d) or (y) ten (10) days following the resolution of all disputed matters properly included in an Earnout Statement Objection Notice in accordance with Section 2.9(e). The Earnout Payment shall be payable with respect to the Company's fiscal year ending December 31, 1998 and the amount of the Earnout payment for such fiscal year will be equal to two times the amount (if any) by which the Company's Adjusted EBITAM for such fiscal exceeds $2,200,000; PROVIDED, HOWEVER, that in no event shall the Earnout amount for such fiscal year be more than $1,000,000. The amount of the Earnout to be received by each Seller shall be the Seller's Company Pro Rata Share thereof. (ii) Within a reasonable time after the conclusion of the fiscal year ending December 31, 1998, but no later than 30 days following the end of such fiscal year, the Purchaser shall deliver to the Sellers' Representative a written notice which shall set forth an estimate of the amount of the Company's Adjusted EBITAM for such fiscal year and an estimate of the Earnout (if any) earned and all calculations made in the determination of such amounts (the "DETERMINATION NOTICE"). The chief financial officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Determination Notice are true and correct to the best of his knowledge and belief. (iii) The Earnout shall be payable as follows. 75% of the Earnout (if any) for any such fiscal year will be paid within three business days of the Sellers' Representative's receipt of the Determination Notice, by wire transfer of immediately available funds pursuant to an account or accounts designated wire transfer instructions provided by the Sellers' Representative in writing. Seller to the Buyer Parent at least two Business Days prior to the date the Earnout Payment is required to be paid. (b) The remaining Earnout (if any) will be paid upon the final determination of the Adjusted EBITAM Statement for the fiscal year ending December 31, 1998 in accordance with this section 2(e), by wire transfer of immediately available funds to an account or accounts designated by the Sellers' Representative in writing. If the amount of the Earnout that Payment (the “Earnout Amount”) shall be equal to the greater of (1) the product of (x) 2.26 times (y) the Average North American Excess, and (2) $0. For example, if the Average North American Excess is ultimately determined to $25.0 million, the Earnout Amount would be payable pursuant to section 2(e)(vi) is less than the amount paid based upon the Determination Notice, then the Sellers shall repay the difference within three business days after such determination$56.5 million (2.26 x $25.0 million). (ivc) For purposes Within ninety (90) days following each of this Agreement, "ADJUSTED EBITAM" for the Company's fiscal year ending December 31, 1998 means the unaudited net income (excluding extraordinary gains or losses) of the Company (including IMP) for the twelve months ending on the last day of such fiscal year2012 and December 31, PLUS (A) any interest on indebtedness and any financing and related fees and expenses deducted in determining net income, (B) all fees or expenses incurred in connection with the transactions contemplated by this Agreement deducted in determining net income, (C) income Taxes deducted in determining net income, (D) any amortization to the extent attributable to the purchase accounting "write-up" resulting from the transactions contemplated hereby and deducted in determining net income, (E) management or other fees charged by the Purchaser and/or its Affiliates and (F) expenses of a non-recurring nature that may occur subsequent to the Closing Date as mutually agreed upon by the Purchaser and the Sellers' Representative. (v) Except as otherwise expressly provided herein, any amount or calculation to be made in connection with the Earnout shall be determined or made (A) in accordance with GAAP applied in a manner consistent with the same accounting principles and methodologies used in the preparation of the Financial Statements, and (B) using the same revenue, income and expense recognition policies and practices as have been used by the Company prior to the Closing. (vi) Within 90 days following the Closing2013, the Purchaser at its expense Buyer Sub shall prepare and deliver to the Sellers' Buyer Parent and the Seller Representative a statement reflecting its good faith calculations of the actual Adjusted EBITAM EBITDA and the North American Excess for the preceding calendar year. The statement shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the Company for such fiscal year North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of equivalent or similar position) of the Buyer Sub. The Buyer Parent and the Seller Representative may discuss the calculation of EBITDA and the North American Excess and make any mutually agreed changes, but the failure to do so shall not prejudice the rights of any Party pursuant to this Section 2.9. (d) Within ninety (90) days after December 31, 2014, the Buyer Sub shall prepare and deliver to the Buyer Parent and the Seller Representative a statement (the "ADJUSTED EBITAM STATEMENT"“Earnout Statement”) setting forth its good faith calculation of the EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years (which, for the avoidance of doubt, may be different than those provided under Section 2.9(c)), the Average North American Excess and the Earnout Amount. The chief EBITDA and the North American Excess for the 2012, 2013 and 2014 calendar years shall be prepared in accordance with this Agreement and GAAP and shall be accompanied by any financial statements of the North American Business used in calculating EBITDA, all of which shall be certified by the Chief Financial Officer (or officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Adjusted EBITAM Statement are true and correct to the best of his knowledge and belief. During the 30 days immediately following receipt equivalent or similar position) of the Adjusted EBITAM Statement by the Sellers' Representative, the Sellers' Buyer Sub. (e) The Seller Representative and his accountants shall be entitled to review the Adjusted EBITAM Statement and any working papers, trial balances and similar materials relating to the Adjusted EBITAM Statement prepared by the Purchaser or its accountants, and the Purchaser shall provide the Sellers' Representative and his accountants with timely access, during normal business hours, to the personnel, properties, books and records of the Company. The Adjusted EBITAM Statement shall become final and binding upon the parties on the 31st day following delivery thereof unless the Sellers' Representative gives must give written notice to the Purchaser of his disagreement with Buyer Parent, and the Adjusted EBITAM Buyer Parent must give written notice to the Seller Representative (each, an “Earnout Statement (a "NOTICE OF DISAGREEMENT WITH ADJUSTED EBITAM STATEMENT") prior to such date. Any Notice of Disagreement With Adjusted EBITAM Statement shall specify Objection Notice”), specifying in reasonable detail the nature Seller Representative’s or the Buyer Parent’s objections, as the case may be, to any amount reflected on the Earnout Statement within 30 calendar days after receipt of the Earnout Statement. Any item on the Earnout Statement to which the Seller Representative and the Buyer Parent do not timely object in an Earnout Statement Objection Notice will be deemed to be accepted by the Seller Representative and the Buyer Parent; and any disagreement so assertedamounts included within such item will be deemed to be final, binding and conclusive. If a timely the Seller Representative and the Buyer Parent do not give an Earnout Statement Objection Notice within the 30-day period, then the Buyer Sub’s determinations of Disagreement With Adjusted EBITAM the amounts on the Earnout Statement is received by will be final, binding and conclusive on the Purchaser with respect to Parties. (f) If the Adjusted EBITAM Seller Representative gives the Buyer Parent, or the Buyer Parent gives the Seller Representative, an Earnout Statement Objection Notice within 30 calendar days after receipt of the Earnout Statement, then the Adjusted EBITAM Statement (as revised in accordance with clause (A) or (B) below), shall become final and binding upon the Parties on the earlier of (A) the date the Purchaser Buyer Parent and the Sellers' Seller Representative resolve in writing any differences they have with respect to any matter specified in a Notice of Disagreement With Adjusted EBITAM Statement, or (B) the date any matters in dispute are finally resolved in writing by the Accounting Firm in the manner described below (the date on which the Adjusted EBITAM Statement so becomes final and binding being hereinafter referred to as the "FINAL ADJUSTED EBITAM DETERMINATION DATE"). During the 30 days immediately following the delivery of any Notice of Disagreement With Adjusted EBITAM Statement, the Purchaser and the Sellers' Representative shall seek will negotiate in good faith to resolve any disputed items concerning the Earnout Statement for the 20 calendar days after receipt of any Earnout Statement Objection Notice, and any such items (and any amounts included within such items) resolved during such negotiations will be final, binding and conclusive on the Parties. (g) If the Buyer Parent and the Seller Representative are unable to resolve all disputed items within the 20-day period set forth in writing any differences which they may have Section 2.9(f), then the Buyer Parent and the Seller Representative will submit only those items remaining in dispute for resolution to the Appointed Arbiter. The Buyer Parent and the Seller Representative will, and will cause their respective accountants to, cooperate fully with respect the Appointed Arbiter to any matter specified in facilitate its resolution of the dispute, including by providing and explaining as requested the information, data and work papers used by such Notice of Disagreement With Adjusted EBITAM Party to prepare the Earnout Statement. During such period, the Sellers' Representative Earnout Statement Objection Notice and his accountants shall each have access their interpretation of the dispute. The Appointed Arbiter will determine and report to the Company's working papers, trial balances and similar materials (including the working papers, trial balances and similar materials of the Company's accountants) prepared in connection with the Purchaser's preparation of the Adjusted EBITAM Statement. At the end of such 30-day period, the Sellers' Representative Buyer Parent and the Purchaser shall submit to an independent "Big 6" public accounting firm (Seller Representative its determination on the "ACCOUNTING FIRM") remaining disputed items submitted for review and resolution any and all matters which remain in dispute and which were included in any Notice of Disagreement With Adjusted EBITAM Statement (it being understood that the Accounting Firm shall act as an arbitrator to determine, based solely on presentations by the Purchaser and the Sellers' Representative (and not by independent review), only those matters which remain in dispute)such remaining disputed items submitted for resolution) within 15 Business Days after the dispute is submitted to the Appointed Arbiter, and the Accounting Firm shall reach a Appointed Arbiter’s determination will be final, binding resolution of all matters which remain in disputeand conclusive on the Parties, which final resolution shall be (Wexcept to correct manifest clerical or mathematical errors. The Buyer Parent ( 1/2) in writing, (X) furnished to the Purchaser and the Sellers' Representative as soon as practicable after Seller ( 1/2) will bear equally the items in dispute have been referred to the Accounting Firmfees, (Y) made in accordance with this Agreement, and (Z) conclusive and binding upon the Parties to this Agreement and not subject to collateral attack for any reason. The Adjusted EBITAM Statement, with any adjustments necessary to reflect the Accounting Firm's resolution of the matters in dispute, shall become final and binding on the Parties on the date the Accounting Firm delivers its final resolution to the Parties. The Accounting Firm shall be mutually selected by the Purchaser and the Sellers' Representative, or, if the Purchaser and the Sellers' Representative cannot so agree within the 30-day period referred to above, by lot from among the independent "Big 6" public accounting firms (after excluding the Purchaser's independent public accountants) willing to act. Each Party shall pay its own costs and expenses incurred in connection with such arbitration, provided that the fees and expenses of the Accounting Firm shall be borne as follows:Appointed Arbiter. (Ah) if the Accounting Firm resolves all of the remaining objections in favor of the Purchaser (the amount After delivery of the Earnout so determined is referred to herein as the "EARNOUT LOW AMOUNT")Statement, the Sellers Buyer Sub will be responsible for all provide the Buyer Parent, the Seller Representative and their respective Representatives reasonable access during normal business hours and without significant disruption to the business of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share); (B) if the Accounting Firm resolves all of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as the "EARNOUT HIGH AMOUNT")Buyer Sub, the Purchaser will be responsible for all of Buyer Parent or the fees and expenses of the Accounting Firm; andSeller (as applicable) (C) if the Accounting Firm resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as "EARNOUT ACTUAL AMOUNT"), the Sellers will be responsible for that fraction of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share) equal to (i) to the difference between books and records in their possession or under their control containing information directly relevant to the Earnout High Amount and Statement or the Earnout Actual Amount over Statement Objection Notice (as applicable) and (ii) to the difference between employees or other Representatives responsible for preparing the Earnout High Amount and Statement or the Earnout Low AmountStatement Objection Notice (as applicable). However, and the Purchaser in no event will any Party be responsible for the remainder of the fees and expenses. (vii) If the Purchaser has determined that required to provide access to, or be deemed to have waived any remaining Earnout payment is payable privilege with respect to the fiscal year ending December 31to, 1998any books, the Purchaser shall pay such remaining Earnout payment when records or other information that it delivers the Adjusted EBITAM Statement for such fiscal year (even if the Sellers' Representative disputes the amount of such Earnout payment as determined by the Purchaser). If the amount of the Earnout payment reasonably believes is in dispute, and the Earnout payment that is ultimately determined to be payable pursuant to section 2(e)(vi) is (A) greater than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Purchaser shall pay the difference within three business days after such determination, or (B) less than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Sellers shall repay, the difference within three business days after such determination. Payment of any remaining Earnout pursuant to clause (A) of this paragraph (vii) shall be made by the Purchaser to the Sellers by wire transfer of immediately available funds to the account or accounts designated in writing by the Sellers' Representative. Payment of any amounts payable to the Purchaser pursuant to clause (B) of this paragraph (vii) shall be made by wire transfer of immediately available funds to the account designated in writing by the Purchaserprivileged.

Earnout. (i) The Sellers Seller will be entitled to receive a contingent purchase price payment of up to $1,000,000 (the "EARNOUTEarnout") in accordance with the provisions of this section 2(e"section"2(e). The Earnout shall be payable with respect to the Company's fiscal year years ending December 31June 30, 1998 1999 and June 30, 2000 and the amount of the Earnout payment for each such fiscal year will be equal to two times the amount (if any) by which the Company's Adjusted EBITAM for such fiscal year exceeds $2,200,000the following amounts (the "Target Amounts"); PROVIDEDprovided, HOWEVERhowever, that in no event shall the Earnout amount for such either fiscal year be more than $1,000,000. The amount of the Earnout to be received by each Seller shall be the Seller's Company Pro Rata Share thereof. (ii) Within a reasonable time after the conclusion of the fiscal year ending December 31500,000: Fiscal Year Ending EBITAM TARGET AMOUNT -------------------- June 30, 19981999 $ 1,775,000 June 30, but no later than 30 days following the end of such fiscal year, the Purchaser shall deliver to the Sellers' Representative a written notice which shall set forth an estimate of the amount of the Company's Adjusted EBITAM for such fiscal year and an estimate of the Earnout (if any) earned and all calculations made in the determination of such amounts (the "DETERMINATION NOTICE"). The chief financial officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Determination Notice are true and correct to the best of his knowledge and belief. (iii) 2000 $ 1,955,000 The Earnout shall be payable as follows. 75% of the Earnout payment (if any) for any either such fiscal year will be paid within three business days of the Sellers' Representative's receipt of the Determination Notice, by wire transfer of immediately available funds to an account or accounts designated by the Sellers' Representative in writing. The remaining Earnout (if any) will be paid upon the final determination of the Adjusted EBITAM Statement for the such fiscal year ending December 31, 1998 in accordance with this section 2(e"section"2(e), by wire transfer of immediately available funds to an account or accounts designated by the Sellers' Representative Seller in writing. If Should the amount Company's EBITAM for the fiscal year ended June 30, 1999 (the "1999 EBITAM") not exceed the June 30, 1999 Target Amount as set forth above, Seller shall not be entitled to any Earnout payment for the fiscal year ended June 30, 1999, unless the 1999 EBITAM when added to the Company's EBITAM for the fiscal year ended June 30, 2000 (the "2000 EBITAM") exceed the sum of the 1999 and 2000 Target Amounts. In such event, Seller shall be entitled to the Earnout that is ultimately determined payment for both such fiscal years. Should the Company's 2000 EBITAM not exceed the 2000 Target Amount, Seller shall not be entitled to be payable pursuant any Earnout payment for the fiscal year ended June 30, 2000 unless the 2000 EBITAM when added to section 2(e)(vi) is less than the amount paid based upon 1999 EBITAM exceed the Determination Notice, then sum of the Sellers shall repay the difference within three business days after such determination1999 and 2000 Target Amounts. (ivii) For purposes of this Agreement, "ADJUSTED EBITAM" for either such fiscal year means the Company's fiscal year ending December 31, 1998 means the unaudited net income (excluding extraordinary gains or losses) of the Company (including IMP) earnings for the twelve months ending on the last day of such fiscal year, PLUS before taking into account (Ai) any interest on indebtedness and any financing and related fees and expenses deducted in determining net incomeexpenses, (Bii) all fees or expenses incurred in connection with the transactions contemplated by this Agreement deducted in determining net incomeAgreement, (Ciii) income Taxes deducted in determining net incomeTaxes, (Div) any amortization or depreciation to the extent attributable to the purchase accounting "write-up" resulting from the transactions contemplated hereby and deducted in determining net income, (Ev) management or other fees charged by the Purchaser and/or its Affiliates and (F) expenses of a non-recurring nature that may occur subsequent to the Closing Date as mutually agreed upon by the Purchaser and the Sellers' RepresentativeAffiliates. (viii) Except as otherwise expressly provided herein, any amount or calculation to be made in connection with the Earnout shall be determined or made (A) in accordance with GAAP applied in a manner consistent with the same accounting principles and methodologies used in the preparation of the Financial StatementsGAAP, and (B) using the same revenue, income and expense recognition policies and practices as have been used by the Company prior to the Closing, unless such policies and practices are determined not to have been prepared in accordance with GAAP; and (C) based on the unaudited financial statements of the Company utilized in connection with the preparation of the audited consolidated financial statements of the Purchaser and its Subsidiaries. (viiv) Within 90 days following Promptly (but in no event later than sixty (60) after the Closingend of each such fiscal year, the Purchaser at its expense shall prepare and deliver to the Sellers' Representative Seller a statement of the actual Adjusted EBITAM of the Company for such the fiscal year then ended (the "ADJUSTED EBITAM STATEMENTStatement"). The chief financial officer of the Purchaser shall certify the amounts determined and calculations made as set forth in the Adjusted EBITAM Statement are true and correct to the best of his knowledge and belief. During the 30 days immediately following receipt of the Adjusted EBITAM Statement by the Sellers' RepresentativeSeller, the Sellers' Representative Seller and his accountants shall be entitled to review the Adjusted EBITAM Statement and any working papers, trial balances and similar materials relating to the Adjusted EBITAM Statement prepared by the Purchaser or its accountants, and the Purchaser shall provide the Sellers' Representative Seller and his accountants with timely access, during normal business hours, to the personnel, properties, books and records of the CompanyCompany and the Purchaser. The Adjusted EBITAM Statement shall become final and binding upon the parties on the 31st day following delivery thereof unless the Sellers' Representative Seller gives written notice to the Purchaser of his disagreement with the Adjusted EBITAM Statement (a "NOTICE OF DISAGREEMENT WITH ADJUSTED Notice of Disagreement With EBITAM STATEMENTStatement") prior to such date. Any Notice of Disagreement With Adjusted EBITAM Statement shall specify in reasonable detail the nature of any disagreement so asserted. If a timely Notice of Disagreement With Adjusted EBITAM Statement is received by the Purchaser with respect to the Adjusted EBITAM Statement, then the Adjusted EBITAM Statement (as revised in accordance with clause (A) or (B) below), shall become final and binding upon the Parties parties on the earlier of (A) the date the Purchaser and the Sellers' Representative Seller resolve in writing any differences they have with respect to any matter specified in a Notice of Disagreement With Adjusted EBITAM Statement, or (B) the date any matters in dispute are finally resolved in writing by the EBITAM Dispute Accounting Firm in the manner described below (the date on which the Adjusted EBITAM Statement so becomes final and binding being hereinafter referred to as the "FINAL ADJUSTED Final EBITAM DETERMINATION DATEDetermination Date"). During the 30 days immediately following the delivery of any Notice of Disagreement With Adjusted EBITAM Statement, the Purchaser and the Sellers' Representative Seller shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in such Notice of Disagreement With Adjusted EBITAM Statement. During such period, the Sellers' Representative Seller and his accountants shall each have access to the Company's working papers, trial balances and similar materials (including the working papers, trial balances and similar materials of the CompanyPurchaser's accountants) prepared in connection with the Purchaser's preparation of the Adjusted EBITAM Statement. At the end of such 30-day period, the Sellers' Representative Seller and the Purchaser shall submit to an independent "Big 6" public accounting firm (the "ACCOUNTING FIRMEBITAM Dispute Accounting Firm") for review and resolution any and all matters which remain in dispute and which were included in any Notice of Disagreement With Adjusted EBITAM Statement (it being understood that the EBITAM Dispute Accounting Firm shall act as an arbitrator to determine, based solely on presentations by the Purchaser and the Sellers' Representative Seller (and not by independent review), only those matters which remain in dispute), and the EBITAM Dispute Accounting Firm shall reach a final, binding resolution of all matters which remain in dispute, which final resolution shall be (WA) in writing, (XB) furnished to the Purchaser and the Sellers' Representative Seller as soon as practicable after the items in dispute have been referred to the EBITAM Dispute Accounting Firm, (YC) made in accordance with this Agreement, and (ZD) conclusive and binding upon the Parties to this Agreement and not subject to collateral attack for any reason. The Adjusted EBITAM Statement, with any adjustments necessary to reflect the EBITAM Dispute Accounting Firm's resolution of the matters in dispute, shall become final and binding on the Parties on the date the EBITAM Dispute Accounting Firm delivers its final resolution to the Parties. The EBITAM Dispute Accounting Firm shall be mutually selected by the Purchaser and the Sellers' RepresentativeSeller, or, if the Purchaser and the Sellers' Representative Seller cannot so agree within the 30-day period referred to above, by lot from among the independent "Big 6" public accounting firms (after excluding Crip▇▇▇, ▇▇ip▇▇▇ ▇▇▇ Tric▇ ▇▇▇ the Purchaser's independent public accountants) willing to act. Each Party shall pay its own costs and expenses incurred in connection with such arbitration; provided, provided that the fees and expenses of the EBITAM Dispute Accounting Firm shall be borne as follows: (A) if the EBITAM Dispute Accounting Firm resolves all of the remaining objections in favor of the Purchaser (the amount of the Earnout EBITAM so determined is referred to herein as the "EARNOUT LOW AMOUNTLow EBITAM Amount"), the Sellers Seller will be responsible for all of the fees and expenses of the EBITAM Dispute Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share)Firm; (B) if the EBITAM Dispute Accounting Firm resolves all of the remaining objections in favor of the Sellers Seller (the amount of the Earnout EBITAM so determined is referred to herein as the "EARNOUT HIGH AMOUNTHigh EBITAM Amount"), the Purchaser will be responsible for all of the fees and expenses of the EBITAM Dispute Accounting Firm; and (C) if the EBITAM Dispute Accounting Firm resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Sellers Seller (the amount of the Earnout EBITAM so determined is referred to herein as "EARNOUT ACTUAL AMOUNTActual EBITAM Amount"), the Sellers Seller will be responsible for that fraction of the fees and expenses of the EBITAM Dispute Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share) equal to (i1) the difference between the Earnout High Amount and the Earnout Actual Amount over (ii2) the difference between the Earnout High Amount and the Earnout Low Amount, and the Purchaser will be responsible for the remainder of the fees and expenses. (viiv) If the Purchaser has determined that any remaining an Earnout payment is payable with respect to either of the fiscal year years ending December 31June 30, 19981999 and June 30, 2000, the Purchaser shall pay such remaining Earnout payment when it delivers the Adjusted EBITAM Statement for such fiscal year (even if the Sellers' Representative disputes Seller dispute the amount of such Earnout payment as determined by the Purchaser). If the amount of the Earnout payment is in dispute, and the Earnout payment that is ultimately determined to be payable pursuant to section 2(e)(vi"section"2(e)(iv) is (A) greater than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii)sentence, then the Purchaser shall pay the difference within three business days after such determination, or (B) less than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Sellers shall repay, the difference within three business days after such determination. Payment of any remaining Earnout pursuant to clause (A) of this paragraph (vii) shall be made by the Purchaser to the Sellers by wire transfer of immediately available funds to the account or accounts designated in writing by the Sellers' Representative. Payment of any amounts payable to the Purchaser pursuant to clause (B) of this paragraph (vii) shall be made by wire transfer of immediately available funds to the account designated in writing by the Purchaser.paid

Earnout. (a) Payment of Preliminary Earn-Out Payment. (i) The Sellers will On the Earn-Out Payment Date (as defined below), if the Preliminary Earn-Out Ratio (as defined above) is equal to or greater than 11%, the Purchaser shall at its election (which shall be entitled exercised in writing delivered to receive a contingent purchase price payment the Funds no later than the first day of up the Trading Period; if no such notice is received by the Funds prior to $1,000,000 the first day of the Trading Period the Purchaser shall be deemed to have elected to pay cash) either (i) pay to the Funds by wire transfer in immediately available funds to one or more bank accounts designated by the Funds an aggregate amount of cash or (ii) issue shares of Purchaser Common Stock in the manner and number calculated as provided in paragraph (ii) below (the "EARNOUTPreliminary Earn-Out Payment") in accordance with the provisions of this section 2(e). The Earnout shall be payable with respect equal to the Company's fiscal year ending December 31, 1998 and the amount of the Earnout payment for such fiscal year will be equal to two times the amount Preliminary Earn-Out Payment Amount (if any) by which the Company's Adjusted EBITAM for such fiscal exceeds $2,200,000; PROVIDED, HOWEVER, that in no event shall the Earnout amount for such fiscal year be more than $1,000,000. The amount of the Earnout to be received by each Seller shall be the Seller's Company Pro Rata Share thereofas defined below). (ii) Within a reasonable time after The number of shares of Purchaser Common Stock to be issued to the conclusion Funds in payment of the fiscal year ending December 31, 1998, but no later than 30 days following Preliminary Earn- Out Payment calculated pursuant to Section 2.1(a)(i) above shall be fixed based on the end of such fiscal year, the Purchaser shall deliver to the Sellers' Representative a written notice which shall set forth an estimate of the amount of the Company's Adjusted EBITAM for such fiscal year and an estimate of the Earnout (if any) earned and all calculations made in the determination of such amounts twenty "Trading Days" (the "DETERMINATION NOTICETrading Period"). The chief financial officer ) weighted average (based on the average daily volume) "Closing Price" of the Purchaser shall certify Common Stock during the amounts determined and calculations made as set forth in the Determination Notice are true and correct to the best of his knowledge and belief. (iii) The Earnout shall be payable as follows. 75% of the Earnout (if any) for any such fiscal year will be paid within period ending three business days of the Sellers' Representative's receipt of the Determination Notice, by wire transfer of immediately available funds to an account or accounts designated by the Sellers' Representative in writing. The remaining Earnout (if any) will be paid upon the final determination of the Adjusted EBITAM Statement for the fiscal year ending December 31, 1998 in accordance with this section 2(e), by wire transfer of immediately available funds to an account or accounts designated by the Sellers' Representative in writing. If the amount of the Earnout that is ultimately determined to be payable pursuant to section 2(e)(vi) is less than the amount paid based upon the Determination Notice, then the Sellers shall repay the difference within three business days after such determination. (iv) For purposes of this Agreement, "ADJUSTED EBITAM" for the Company's fiscal year ending December 31, 1998 means the unaudited net income (excluding extraordinary gains or losses) of the Company (including IMP) for the twelve months ending on the last day of such fiscal year, PLUS (A) any interest on indebtedness and any financing and related fees and expenses deducted in determining net income, (B) all fees or expenses incurred in connection with the transactions contemplated by this Agreement deducted in determining net income, (C) income Taxes deducted in determining net income, (D) any amortization to the extent attributable to the purchase accounting "write-up" resulting from the transactions contemplated hereby and deducted in determining net income, (E) management or other fees charged by the Purchaser and/or its Affiliates and (F) expenses of a non-recurring nature that may occur subsequent to the Closing Date as mutually agreed upon by the Purchaser and the Sellers' Representative. (v) Except as otherwise expressly provided herein, any amount or calculation to be made in connection with the Earnout shall be determined or made (A) in accordance with GAAP applied in a manner consistent with the same accounting principles and methodologies used in the preparation of the Financial Statements, and (B) using the same revenue, income and expense recognition policies and practices as have been used by the Company Trading Days prior to the Closing. (vi) Within 90 days following relevant date of payment. The "Closing Price" of any day shall mean the Closinglast reported sale price, regular way or in case no such sale takes place on such day, the Purchaser at its expense shall prepare and deliver to the Sellers' Representative a statement average of the actual Adjusted EBITAM of closing bid and asked prices, regular way, in either case as reported in the Company for such fiscal year (principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the "ADJUSTED EBITAM STATEMENT"). The chief financial officer New York Stock Exchange, of the Purchaser shall certify the amounts determined and calculations made as set forth in the Adjusted EBITAM Statement are true and correct to the best of his knowledge and belief. During the 30 days immediately following receipt of the Adjusted EBITAM Statement by the Sellers' Representative, the Sellers' Representative and his accountants shall be entitled to review the Adjusted EBITAM Statement and any working papers, trial balances and similar materials relating to the Adjusted EBITAM Statement prepared by the Purchaser or its accountants, and the Purchaser shall provide the Sellers' Representative and his accountants with timely access, during normal business hours, to the personnel, properties, books and records of the Company. The Adjusted EBITAM Statement shall become final and binding upon the parties on the 31st day following delivery thereof unless the Sellers' Representative gives written notice to the Purchaser of his disagreement with the Adjusted EBITAM Statement (a "NOTICE OF DISAGREEMENT WITH ADJUSTED EBITAM STATEMENT") prior to such date. Any Notice of Disagreement With Adjusted EBITAM Statement shall specify in reasonable detail the nature of any disagreement so asserted. If a timely Notice of Disagreement With Adjusted EBITAM Statement is received by the Purchaser with respect to the Adjusted EBITAM Statement, then the Adjusted EBITAM Statement (as revised in accordance with clause (A) or (B) below), shall become final and binding upon the Parties on the earlier of (A) the date the Purchaser and the Sellers' Representative resolve in writing any differences they have with respect to any matter specified in a Notice of Disagreement With Adjusted EBITAM Statement, or (B) the date any matters in dispute are finally resolved in writing by the Accounting Firm in the manner described below (the date on which the Adjusted EBITAM Statement so becomes final and binding being hereinafter referred to as the "FINAL ADJUSTED EBITAM DETERMINATION DATE"). During the 30 days immediately following the delivery of any Notice of Disagreement With Adjusted EBITAM Statement, the Purchaser and the Sellers' Representative shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in such Notice of Disagreement With Adjusted EBITAM Statement. During such period, the Sellers' Representative and his accountants shall each have access to the Company's working papers, trial balances and similar materials (including the working papers, trial balances and similar materials of the Company's accountants) prepared in connection with the Purchaser's preparation of the Adjusted EBITAM Statement. At the end of such 30-day period, the Sellers' Representative and the Purchaser shall submit to an independent "Big 6" public accounting firm (the "ACCOUNTING FIRM") for review and resolution any and all matters which remain in dispute and which were included in any Notice of Disagreement With Adjusted EBITAM Statement (it being understood that the Accounting Firm shall act as an arbitrator to determine, based solely on presentations by the Purchaser and the Sellers' Representative (and not by independent review), only those matters which remain in dispute), and the Accounting Firm shall reach a final, binding resolution of all matters which remain in dispute, which final resolution shall be (W) in writing, (X) furnished to the Purchaser and the Sellers' Representative as soon as practicable after the items in dispute have been referred to the Accounting Firm, (Y) made in accordance with this Agreement, and (Z) conclusive and binding upon the Parties to this Agreement and not subject to collateral attack for any reason. The Adjusted EBITAM Statement, with any adjustments necessary to reflect the Accounting Firm's resolution of the matters in dispute, shall become final and binding on the Parties on the date the Accounting Firm delivers its final resolution to the Parties. The Accounting Firm shall be mutually selected by the Purchaser and the Sellers' RepresentativeCommon Stock, or, if not then listed or admitted to trading on the Purchaser and New York Stock Exchange, as reported in the Sellers' Representative cannot so agree within the 30-day period referred to above, by lot from among the independent "Big 6" public accounting firms (after excluding the Purchaser's independent public accountants) willing to act. Each Party shall pay its own costs and expenses incurred in connection with such arbitration, provided that the fees and expenses of the Accounting Firm shall be borne as follows: (A) if the Accounting Firm resolves all of the remaining objections in favor of the Purchaser (the amount of the Earnout so determined is referred to herein as the "EARNOUT LOW AMOUNT"), the Sellers will be responsible for all of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share); (B) if the Accounting Firm resolves all of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as the "EARNOUT HIGH AMOUNT"), the Purchaser will be responsible for all of the fees and expenses of the Accounting Firm; and (C) if the Accounting Firm resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Sellers (the amount of the Earnout so determined is referred to herein as "EARNOUT ACTUAL AMOUNT"), the Sellers will be responsible for that fraction of the fees and expenses of the Accounting Firm (PRO RATA based on each Seller's Company Pro Rata Share) equal to (i) the difference between the Earnout High Amount and the Earnout Actual Amount over (ii) the difference between the Earnout High Amount and the Earnout Low Amount, and the Purchaser will be responsible for the remainder of the fees and expenses. (vii) If the Purchaser has determined that any remaining Earnout payment is payable principal consolidated transaction reporting system with respect to securities listed on the fiscal year ending December 31principal national securities exchange on which the Company Purchaser Common Stock are listed or admitted to trading or, 1998if such Purchaser Common stock are not then listed or admitted into trading on any national securities exchange, the Purchaser shall pay such remaining Earnout payment when it delivers last quoted price, or if not so quoted, the Adjusted EBITAM Statement for such fiscal year (even if the Sellers' Representative disputes the amount of such Earnout payment as determined by the Purchaser). If the amount average of the Earnout payment is high bid and low asked prices in dispute, and the Earnout payment that is ultimately determined to be payable pursuant to section 2(e)(vi) is (A) greater than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Purchaser shall pay the difference within three business days after such determination, or (B) less than the amount (if any) paid pursuant to the previous sentence and section 2(e)(iii), then the Sellers shall repay, the difference within three business days after such determination. Payment of any remaining Earnout pursuant to clause (A) of this paragraph (vii) shall be made by the Purchaser to the Sellers by wire transfer of immediately available funds to the account or accounts designated in writing by the Sellers' Representative. Payment of any amounts payable to the Purchaser pursuant to clause (B) of this paragraph (vii) shall be made by wire transfer of immediately available funds to the account designated in writing by the Purchaser.over-the-counter 13 7