Common use of Earn-Out Clause in Contracts

Earn-Out. (a) No later than January 31, 2016, the Buyer shall deliver to the Seller a statement (the “Calculation Statement”) setting forth the Buyer’s calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment payable to the Seller in accordance with the formula set forth in Section 7.11(b), below. During the thirty (30) calendar day period following delivery of the Calculation Statement, the Buyer shall promptly furnish to the Seller such financial, operating and other data and information related to the preparation of the Calculation Statement and the calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment as the Seller may reasonably request. Within thirty (30) calendar days after receipt of the Calculation Statement from the Buyer, the Seller must notify the Buyer of any objections to the Buyer’s calculation of the 2015 Net Sales and the Base Earn-out Payment and the basis for such disagreements. If the Seller does not so notify the Buyer within such thirty (30) calendar day period of the Seller’s objections to Buyer’s calculation of the 2015 Net Sales or the amount of the Base Earn-out Payment as set forth in the Calculation Statement, then the 2015 Net Sales and the amount of the Base Earn-out Payment as set forth in the Calculation Statement shall be final hereunder. If the Seller does notify the Buyer within such thirty (30) calendar day period that the Seller of its objection in accordance with this paragraph, then the Buyer and the Seller shall use their good faith efforts to attempt to resolve such disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute. If the Buyer and the Seller are unable to resolve the disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute, then the Buyer and the Seller shall jointly engage the Accounting Arbitrator (in accordance with the procedure for selecting the Accounting Arbitrator set forth in Section 2.2(b)) to resolve finally such disputed items. The scope of the Accounting Arbitrator’s engagement shall be limited to the resolution of the disputed items described in the Seller’s notice of dispute, in each case in accordance with GAAP, and the recalculation, if any, of the 2015 Net Sales and the amount of the Base Earn-out Payment in light of such resolution; provided, that the Accounting Arbitrator shall not assign a dollar amount to any item in dispute greater than the greatest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable), or lower than the lowest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable). The determination of the Accounting Arbitrator shall be made as promptly as possible and shall be final and binding upon the Parties, absent manifest error. The Buyer and the Seller shall each be permitted to submit such data and information relating to the unresolved disputed items described in the Seller’s notice of dispute to the Accounting Arbitrator as such party deems appropriate. The expenses and fees of the Accounting Arbitrator shall be paid by the Buyer, on the one hand, and the Seller, on the other hand, based upon the percentage that the amount not actually awarded to such party bears to the amount actually contested by such party. The 2015 Net Sales and the amount of the Base Earn-out Payment as finally agreed by the Buyer and the Seller or as determined by the Accounting Arbitrator as described herein shall be the 2015 Net Sales and the amount of the Base Earn-out Payment for all purposes hereof.

Earn-Out. As additional consideration for the Purchased Assets, Seller shall be entitled to receive (ai) No with respect to the 12 month period commencing on the first day of the month on or after the Effective Date and ending on the last day of the twelfth month thereafter, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds the Base EBIT, if any, and (ii) with respect to the next 12 month period, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds Base EBIT ("Earn Out Payments"). Buyer will prepare the foregoing EBIT calculations and deliver the same to Seller within forty-five (45) days after the end of the twelve month period for which they are required, together with a written certification that such calculations have been prepared and calculated in accordance herewith. Thereafter, Seller will conduct a review of these items and notify Buyer not later than January 31thirty (30) days after receipt of such calculations as to whether they are acceptable to Seller. If Seller objects to such calculations and Buyer and Seller are able to resolve their dispute within fifteen (15) days after Seller's objection, 2016such calculations (reflecting the resolution) will become final and binding on the parties. If Buyer and Seller are unable to resolve their dispute within fifteen (15) days after Seller's objection, the dispute will be resolved by the Independent Accountants. The Independent Accountants will be instructed to perform their services as expeditiously as possible and the resolution of the Independent Accountants shall be final and binding on the parties. The fees and expenses of the Independent Accountants for the resolution of the dispute shall be shared by Buyer shall deliver and Seller in inverse proportion to the Seller a statement (the “Calculation Statement”) setting forth the Buyer’s calculation respective amounts of the 2015 Net Sales and disputed matters which are resolved in its favor. Within ten (10) days after the amount of the Base Earn-out any Earn Out Payment payable to the Seller is finally determined in accordance with the formula set forth foregoing it shall be paid (i) by wire transfer of 75% of such amount in immediately available funds to an account designated in writing by Seller, and (ii) by issuance to Seller of shares of New Horizons Stock having an aggregate Fair Market Value equal to 25% of such amount. For purposes of this Section 7.11(b)3.3, below. During "Fair Market Value" of a share of New Horizons Stock shall mean the average per share closing price of New Horizons Stock on the NASDAQ Stock Market (or successor exchange) for the thirty (30) calendar full trading days ending on the last day period following delivery of the Calculation Statement, the Buyer shall promptly furnish twelve month period with respect to the Seller which such financial, operating and other data and information related to the preparation Earn Out Payment was earned. For purposes of the Calculation Statement and the calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment as the Seller may reasonably request. Within thirty (30) calendar days after receipt of the Calculation Statement from the Buyer, the Seller must notify the Buyer of any objections to the Buyer’s calculation of the 2015 Net Sales and the Base Earn-out Payment and the basis for such disagreements. If the Seller does not so notify the Buyer within such thirty (30) calendar day period of the Seller’s objections to Buyer’s calculation of the 2015 Net Sales or the amount of the Base Earn-out Payment as set forth in the Calculation Statement, then the 2015 Net Sales and the amount of the Base Earn-out Payment as set forth in the Calculation Statement shall be final hereunder. If the Seller does notify the Buyer within such thirty (30) calendar day period that the Seller of its objection in accordance with this paragraph, then the Buyer and the Seller shall use their good faith efforts to attempt to resolve such disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute. If the Buyer and the Seller are unable to resolve the disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute, then the Buyer and the Seller shall jointly engage the Accounting Arbitrator (in accordance with the procedure for selecting the Accounting Arbitrator set forth in Section 2.2(b)) to resolve finally such disputed items. The scope of the Accounting Arbitrator’s engagement shall be limited to the resolution of the disputed items described in the Seller’s notice of dispute, in each case in accordance with GAAP, and the recalculation, if any, of the 2015 Net Sales and the amount of the Base Earn-out Payment in light of such resolution; provided, that the Accounting Arbitrator shall not assign a dollar amount to any item in dispute greater than the greatest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable), or lower than the lowest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable). The determination of the Accounting Arbitrator shall be made as promptly as possible and shall be final and binding upon the Parties, absent manifest error. The Buyer and the Seller shall each be permitted to submit such data and information relating to the unresolved disputed items described in the Seller’s notice of dispute to the Accounting Arbitrator as such party deems appropriate. The expenses and fees of the Accounting Arbitrator shall be paid by the Buyer, on the one hand, and the Seller, on the other hand, based upon the percentage that the amount not actually awarded to such party bears to the amount actually contested by such party. The 2015 Net Sales and the amount of the Base Earn-out Payment as finally agreed by the Buyer and the Seller or as determined by the Accounting Arbitrator as described herein shall be the 2015 Net Sales and the amount of the Base Earn-out Payment for all purposes hereof.3:

Earn-Out. As additional consideration for the Purchased Assets, Seller shall be entitled to receive (a) No with respect to the 12 month period commencing on April 1, 2001 and ending on March 31, 2002, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds the Base EBIT, if any, and (b) with respect to the 12 month period commencing on April 1, 2002 and ending on March 31, 2003, an amount equal to three (3) times the amount by which Buyer's EBIT for such period exceeds Base EBIT, if any, (the "EARN OUT PAYMENTS"). The period of time during which any Earn-Out Payment may be earned shall be extended by an amount of time equal to any period(s) of time during which, due to force majuxx, xxe Atlanta Business cannot be operated at substantially the same level of operation prior to the Closing. For purposes of this Section 3.3, the term "force majuxx" xxall mean any Act of God or other independent event beyond the control of the Atlanta Business which cannot be cured by the exercise of due care or the payment of money. Buyer will prepare the foregoing EBIT calculations and deliver the same to Seller within forty-five (45) days after the end of the twelve month period for which they are required, together with a written certification that such calculations have been prepared and calculated in accordance herewith. Thereafter, Seller will conduct a review of these items and notify Buyer not later than January 31, 2016, the Buyer shall deliver to the Seller a statement (the “Calculation Statement”) setting forth the Buyer’s calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment payable to the Seller in accordance with the formula set forth in Section 7.11(b), below. During the thirty (30) calendar day period following delivery of the Calculation Statement, the Buyer shall promptly furnish to the Seller such financial, operating and other data and information related to the preparation of the Calculation Statement and the calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment as the Seller may reasonably request. Within thirty (30) calendar days after receipt of the Calculation Statement from the Buyer, the Seller must notify the Buyer of any objections such calculations as to the Buyer’s calculation of the 2015 Net Sales and the Base Earn-out Payment and the basis for such disagreementswhether they are acceptable to Seller. If Seller objects to such calculations and Buyer and Seller are able to resolve their dispute within fifteen (15) days after Seller's objection, such calculations (reflecting the Seller does not so notify resolution) will become final and binding on the Buyer within such thirty (30) calendar day period of the Seller’s objections to Buyer’s calculation of the 2015 Net Sales or the amount of the Base Earn-out Payment as set forth in the Calculation Statement, then the 2015 Net Sales and the amount of the Base Earn-out Payment as set forth in the Calculation Statement shall be final hereunderparties. If the Seller does notify the Buyer within such thirty (30) calendar day period that the Seller of its objection in accordance with this paragraph, then the Buyer and the Seller shall use their good faith efforts to attempt to resolve such disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute. If the Buyer and the Seller are unable to resolve the disputed items their dispute within thirty fifteen (3015) calendar days after receipt Seller's objection, the dispute will be resolved by the Buyer of the Seller’s notice of dispute, then the Buyer and the Seller shall jointly engage the Accounting Arbitrator (in accordance with the procedure for selecting the Accounting Arbitrator set forth in Section 2.2(b)) to resolve finally such disputed itemsIndependent Accountants. The scope of the Accounting Arbitrator’s engagement shall Independent Accountants will be limited instructed to perform their services as expeditiously as possible and the resolution of the disputed items described in the Seller’s notice of dispute, in each case in accordance with GAAP, and the recalculation, if any, of the 2015 Net Sales and the amount of the Base Earn-out Payment in light of such resolution; provided, that the Accounting Arbitrator shall not assign a dollar amount to any item in dispute greater than the greatest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable), or lower than the lowest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable). The determination of the Accounting Arbitrator shall be made as promptly as possible and Independent Accountants shall be final and binding upon on the Parties, absent manifest errorparties. The Buyer fees and the Seller shall each be permitted to submit such data and information relating to the unresolved disputed items described in the Seller’s notice of dispute to the Accounting Arbitrator as such party deems appropriate. The expenses and fees of the Accounting Arbitrator shall be paid by Independent Accountants for the Buyer, on the one hand, and the Seller, on the other hand, based upon the percentage that the amount not actually awarded to such party bears to the amount actually contested by such party. The 2015 Net Sales and the amount resolution of the Base Earn-out Payment as finally agreed by the Buyer and the Seller or as determined by the Accounting Arbitrator as described herein shall be the 2015 Net Sales and the amount of the Base Earn-out Payment for all purposes hereof.dispute

Earn-Out. (a) No later than January 31, 2016, the Earn-Out Amount. Buyer shall deliver make the following contingent earn-out payment to the Seller a statement Company as additional consideration for the Purchased Assets. The "Earn-Out Amount" shall equal the excess (if any) of the Net Sales (as herein defined) of Seller's products included in the Business (the “Calculation Statement”"Sterion Products") setting forth by Buyer for the Buyer’s calculation of twelve (12) month period after the 2015 Net Sales and Closing Date (the amount of the Base "Earn-out Payment payable Out Period"), over Seven Million Dollars ($7,000,000). For purposes of calculating the Earn-Out Amount, "Net Sales" shall be reduced by (i) sales to customers who have notified Seller prior to Closing that they have or will be terminating their contract or purchase relationship with Seller, (ii) usual and customary transfer taxes, freight, damage, discounts and returns (but not in an amount that exceeds one hundred five percent (105%) of Seller's historical return rate relating to the Seller in accordance with the formula set forth in Section 7.11(bproducts), below. During the thirty (30iii) calendar day period following delivery of the Calculation Statement, the Buyer shall promptly furnish to the Seller any "bad debt" which comprised such financial, operating and other data and information related to the preparation of the Calculation Statement and the calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment as the Seller may reasonably request. Within thirty (30) calendar days after receipt of the Calculation Statement from the Buyer, the Seller must notify the Buyer of any objections to the Buyer’s calculation of the 2015 Net Sales and the Base Earn-out Payment and the basis for such disagreements. If the Seller does not so notify the Buyer within such thirty (30) calendar day period of the Seller’s objections to Buyer’s calculation of the 2015 Net Sales or the amount of the Base Earn-out Payment as set forth sales which are written off in the Calculation Statement, then the 2015 Net Sales and the amount of the Base Earn-out Payment as set forth in the Calculation Statement shall be final hereunder. If the Seller does notify the Buyer within such thirty (30) calendar day period that the Seller of its objection in accordance ordinary course consistent with this paragraph, then the Buyer and the Seller shall use their good faith efforts to attempt to resolve such disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute. If the Buyer and the Seller are unable to resolve the disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute, then the Buyer and the Seller shall jointly engage the Accounting Arbitrator (in accordance with the procedure for selecting the Accounting Arbitrator set forth in Section 2.2(b)) to resolve finally such disputed items. The scope of the Accounting Arbitrator’s engagement shall be limited to the resolution of the disputed items described in the Seller’s notice of dispute's past practice, in each case calculated or recognized in accordance with GAAP, and (iv) sales of products which do not have a gross profit margin (calculated in accordance with GAAP) exceeding twenty percent (20%). Any such bad debt written off and then subsequently collected shall be added to the recalculationNet Sales amount, if anythe earn-out payment amount shall be recalculated, and any additional resulting earn-out payment shall be added to the balance of the 2015 Earn-Out Note (as defined). As soon as reasonably practicable following the end of each calendar month during the Earn-Out period, Buyer shall deliver to Seller a report of Net Sales for such month (or portion thereof) and an itemization and explanation of any sales that are excluded from the amount of the Base Net Sales calculation for such month. The Earn-out Payment Out Amount shall be payable pursuant to a promissory note in light the form of such resolution; providedExhibit 1.3(a) (the "Earn-Out Note" and together with the Purchase Price Note, that the Accounting Arbitrator shall not assign a dollar amount to any item in dispute greater than the greatest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable"Notes"), or lower than the lowest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable). The determination of the Accounting Arbitrator which Earn-Out Note shall be made as promptly as possible executed and shall be final and binding upon the Parties, absent manifest error. The delivered by Buyer and the to Seller shall each be permitted to submit such data and information relating to the unresolved disputed items described in the Seller’s notice of dispute to the Accounting Arbitrator as such party deems appropriate. The expenses and fees of the Accounting Arbitrator shall be paid by the Buyer, on the one hand, and the Seller, on the other hand, based upon the percentage that the amount not actually awarded to such party bears to the amount actually contested by such party. The 2015 Net Sales and the amount of the Base Earn-out Payment as finally agreed by the Buyer and the Seller or as determined by the Accounting Arbitrator as described herein shall be the 2015 Net Sales and the amount of the Base Earn-out Payment for all purposes hereofno later than fifteen (15) months after Closing.

Earn-Out. (a) No later than January 31Subject to Section 7.13, 2016Article 8 and the terms and conditions set forth in this Section 2.10, Buyers will pay to (i) CA Seller, on behalf of the Sellers, the 2015 Max Earn-Out Amount within five (5) Business Days after April 1, 2016 and (ii) CA Seller, on behalf of the Sellers, the 2016 Max Earn-Out Amount within five (5) Business Days after April 1, 2017 (collectively, the "Earn-Out Amounts"). For purposes hereof, "2015 Max Earn-Out Amount" shall mean $9,000,000, "2016 Max Earn-Out Amount" shall mean $10,500,000. (b) Buyers shall have the right to withhold and set off against any amount due to be paid pursuant to this Section 2.10 the amount of any Damages to which any Buyer Indemnified Persons may be entitled under Article 8 hereof and which (for greater certainty) have been finally determined by a court of competent jurisdiction or mutually agreed between the Buyer Representative and the Seller Representative. (c) The Earn-Out Amounts will be allocated to goodwill in a manner consistent with the Tax Purchase Price Allocation in Section 2.5 and paid by the applicable Buyer to the appropriate Seller. (d) U.S. Tax Treatment of Earn-Out. (i) US Buyer and US Seller agree that the sale and purchase of the Acquired Assets pursuant to the terms of this Agreement represents a contingent payment sale with a stated maximum selling price as contemplated by Treasury Regulations Sections 15A.453-1(c)(1) - (2). As a result, any payment of the Earn-Out Amounts allocable to the Acquired Assets purchased by the US Buyer (each an "Installment Sale Payment") will constitute an installment sale for purposes of Code Section 453. (ii) In calculating the portion of each Installment Sale Payment that constitutes interest, each Buyer and each Seller agree that each applicable Buyer shall deliver impute interest to the Installment Sale Payment by applying the mid-term applicable federal rate, as determined by Code Section 1274(d), for interest compounding annually for the month in which the Closing Date occurs, and shall in writing inform Seller a statement (the “Calculation Statement”) setting forth the Buyer’s calculation Representative of the 2015 Net Sales and the amount of the Base imputed interest in each tax year. (iii) Each Buyer and each Seller agree that, for United States federal income tax purposes, each Installment Sale Payment shall be treated as additional purchase price paid to or on account of such Seller for the Acquired Assets except to the extent a portion of an Installment Sale Payment constitutes interest for United States tax purposes pursuant to this Section 2.10(d). (e) Canadian Tax Treatment of Earn-out Payment payable Out. Earn-Out Amounts allocated to the Acquired Assets purchased by the CA Seller will be taxed in accordance with the formula set forth in Section 7.11(b), below. During the thirty (30) calendar day period following delivery provisions of the Calculation StatementITA. To the extent any Earn-Out Amounts are subject to Canadian withholding tax under the ITA, subject to a reduction in the Buyer shall promptly furnish applicable rate of withholding tax under the Canada-U.S. Income Tax Convention, such withholding tax will be withheld from such Earn-Out Amounts and remitted to the Seller such financial, operating and other data and information related to the preparation Canadian government. (f) Forfeiture of the Calculation Statement and the calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment as the Seller may reasonably request. Within thirty (30) calendar days after receipt of the Calculation Statement from the Buyer, the Seller must notify the Buyer of any objections to the Buyer’s calculation of the 2015 Net Sales and the Base Earn-out Payment and the basis for such disagreementsOut Amounts. If the Seller does not so notify the Buyer within such thirty Xxxxx Xxxxxx'x employment with RFE Holding (30Canada) calendar day period of the Seller’s objections to Buyer’s calculation of the 2015 Net Sales or the amount of the Base Earn-out Payment as set forth in the Calculation Statement, then the 2015 Net Sales and the amount of the Base Earn-out Payment as set forth in the Calculation Statement shall be final hereunder. If the Seller does notify the Buyer within such thirty Corp. is (30i) calendar day period that the Seller of its objection in accordance with this paragraph, then the Buyer and the Seller shall use their good faith efforts to attempt to resolve such disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute. If the Buyer and the Seller are unable to resolve the disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute, then the Buyer and the Seller shall jointly engage the Accounting Arbitrator (in accordance with the procedure terminated for selecting the Accounting Arbitrator set forth in Section 2.2(b)) to resolve finally such disputed items. The scope of the Accounting Arbitrator’s engagement shall be limited to the resolution of the disputed items described in the Seller’s notice of dispute, in each case in accordance with GAAP, and the recalculation, if any, of the 2015 Net Sales and the amount of the Base Earn-out Payment in light of such resolution; provided, that the Accounting Arbitrator shall not assign a dollar amount to any item in dispute greater than the greatest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand Just Cause (as applicablesuch term is defined in his Employment Agreement), or lower than (ii) if Xx. Xxxxxx terminates his employment without Good Reason (as such term is defined in his Employment Agreement), then Sellers shall forfeit all rights to the lowest dollar amount for 2015 Max Earn-Out Amount and the 2016 Max Earn-Out Amount to the extent such item assigned by amounts are not yet due. The Sellers will not forfeit any rights to the Buyer, on the one hand, 2015 Max Earn-Out Amount or the Seller, on the other hand 2016 Max Earn-Out Amount by reason of Xx. Xxxxxx'x (as applicable). The determination i) death or (ii) his disability or incapacitation." (e) Section 7.13 of the Accounting Arbitrator shall be made Purchase Agreement is hereby amended and restated in its entirety to read as promptly as possible and shall be final and binding upon the Parties, absent manifest error. The Buyer and the Seller shall each be permitted to submit such data and information relating to the unresolved disputed items described in the Seller’s notice of dispute to the Accounting Arbitrator as such party deems appropriate. The expenses and fees of the Accounting Arbitrator shall be paid by the Buyer, on the one hand, and the Seller, on the other hand, based upon the percentage that the amount not actually awarded to such party bears to the amount actually contested by such party. The 2015 Net Sales and the amount of the Base Earn-out Payment as finally agreed by the Buyer and the Seller or as determined by the Accounting Arbitrator as described herein shall be the 2015 Net Sales and the amount of the Base Earn-out Payment for all purposes hereof.follows: "7.13

Earn-Out. (a) No later than January 3145 days after the last day of Earn-Out Period, 2016, the Buyer shall deliver to the Seller Shareholders’ Representative a statement (the “Calculation Earn-Out Statement”) setting forth forth, for the Buyer’s calculation Earn-Out Period, the aggregate revenues attributable to the operation of the 2015 Net Sales and Post-Closing Business during the amount of the Base Earn-out Payment payable Out Period, net of brokerage, marketer’s, finder’s or similar third-party fees or commissions and costs or expenses historically deducted to compute net revenue as set forth on the Seller Company’s Financial Statements (the “Earn-Out Revenue”). The Earn-Out Statement shall have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis as in the formula Audited Financial Statements (“GAAP”). If the Shareholders’ Representative disagrees with the Earn-Out Revenue as set forth in Section 7.11(b), below. During on the thirty (30) calendar day period following delivery of the Calculation Earn-Out Statement, the Buyer shall promptly furnish to the Seller such financialShareholders’ Representative may, operating and other data and information related to the preparation of the Calculation Statement and the calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment as the Seller may reasonably request. Within thirty (30) calendar days within 15 Business Days after receipt of the Calculation Statement from Earn-Out Statement, deliver a written notice (a “Notice of Earn-Out Disagreement”) to Buyer setting forth in reasonable detail the Buyer, the Seller must notify the Buyer nature and amount of any objections to the Buyer’s calculation disputed item. If Buyer does not receive a Notice of the 2015 Net Sales and the Base Earn-out Payment and the basis for such disagreements. If the Seller does not so notify the Buyer Out Disagreement within such thirty (30) calendar day period of the Seller’s objections to Buyer’s calculation of the 2015 Net Sales or the amount of the Base Earn-out Payment as set forth in the Calculation Statement, then the 2015 Net Sales and the amount of the Base Earn-out Payment as set forth in the Calculation Statement shall be final hereunder. If the Seller does notify the Buyer within such thirty (30) calendar day period that the Seller of its objection in accordance with this paragraph, then the Buyer and the Seller shall use their good faith efforts to attempt to resolve such disputed items within thirty (30) calendar days 15 Business Days after receipt by the Buyer Shareholders’ Representative of the Seller’s notice Earn-Out Statement, the Earn-Out Revenue of disputethe Company reflected therein shall be conclusive and binding (absent manifest error or willful misrepresentation). In addition, any item not identified in the Notice of Earn-Out Disagreement as a disputed item as contemplated by this Section 3.10(a) shall be conclusive and binding (absent manifest error or willful misrepresentation). If Buyer receives a Notice of Earn-Out Disagreement from the Buyer and the Seller are unable to resolve the disputed items Shareholders’ Representative within thirty (30) calendar days 15 Business Days after receipt by the Buyer Shareholders’ Representative of the Seller’s notice of disputeEarn-Out Statement, then the Buyer and the Seller Shareholders’ Representative shall use reasonable efforts to resolve any differences that they may have with respect to the matters specified therein. If Buyer and the Shareholders’ Representative have not resolved all such matters as of the 10th Business Day after delivery by the Shareholders’ Representative of the Notice of Earn-Out Disagreement, Buyer and the Shareholders’ Representative shall jointly engage retain the Independent Accounting Arbitrator (Firm to resolve such remaining disagreement in accordance with the procedure for selecting the Accounting Arbitrator set forth in Section 2.2(b3.10(c)) to resolve finally such disputed items. The scope of the Accounting Arbitrator’s engagement shall be limited to the resolution of the disputed items described in the Seller’s notice of dispute, in each case in accordance with GAAP, and the recalculation, if any, of the 2015 Net Sales and the amount of the Base Earn-out Payment in light of such resolution; provided, that the Accounting Arbitrator shall not assign a dollar amount to any item in dispute greater than the greatest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable), or lower than the lowest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable). The determination of the Accounting Arbitrator shall be made as promptly as possible and shall be final and binding upon the Parties, absent manifest error. The Buyer and the Seller shall each be permitted to submit such data and information relating to the unresolved disputed items described in the Seller’s notice of dispute to the Accounting Arbitrator as such party deems appropriate. The expenses and fees of the Accounting Arbitrator shall be paid by the Buyer, on the one hand, and the Seller, on the other hand, based upon the percentage that the amount not actually awarded to such party bears to the amount actually contested by such party. The 2015 Net Sales and the amount of the Base Earn-out Payment as finally agreed by the Buyer and the Seller or as determined by the Accounting Arbitrator as described herein shall be the 2015 Net Sales and the amount of the Base Earn-out Payment for all purposes hereof.

Earn-Out. (a) No later than January 31As additional consideration for Company Capital Stock, 2016Parent shall pay certain earn-out amounts to those Stockholders who were entitled to receive a Closing Payment computed in accordance with, and subject to, the Buyer shall deliver provisions of Schedule 2.09 (“Earn-Out Payments”) in accordance with their Applicable Percentages; provided, that (A) 45% of the portion of any Earn-Out Payment that is otherwise payable to the Seller a statement holders of Company Common Stock will be reduced (but not below zero) by the “Calculation Statement”sum of (i) setting forth the Buyer’s calculation of the 2015 Net Sales and any unpaid amounts owed to Parent pursuant to Section 2.08(f), plus (ii) the amount of any indemnification payment owed to any Parent Indemnitees under Article VII that has not been paid from the Base Escrow Fund, plus (iii) the amount, if any, by which any Unresolved Claim exceeds any associated Retained Amounts, and (B) if the sum described in the preceding clause (A) exceeds 45% of the portion of such Earn-out Out Payment that was otherwise payable to the Seller holders of Company Common Stock, 45% of the portion of any Earn-Out Payment that is otherwise payable to the holders of Company Series A Preferred will be reduced (but not below zero) by the amount of such excess. The aggregate dollar amount of funds retained under this Section 2.09 related to a properly asserted Unresolved Claim (each an “Earnout Holdback Amount”) shall be retained until Final Resolution of such Unresolved Claim, and upon such Final Resolution any remaining balance of the Earnout Holdback Amount for such Unresolved Claim, after application of, first, any Retained Amounts and, second, any Earnout Holdback Amounts to satisfy any amounts required to be paid to Parent pursuant to Final Resolution of such Unresolved Claim (and in no case longer than five (5) Business Days from such Final Resolution), shall be promptly paid to the former holders of Company Capital Stock, in accordance with the formula set forth in Section 7.11(b), below. During the thirty (30) calendar day period following delivery of the Calculation Statement, the Buyer shall promptly furnish to the Seller such financial, operating and other data and information related to the preparation of the Calculation Statement and the calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment as the Seller may reasonably request. Within thirty (30) calendar days after receipt of the Calculation Statement from the Buyer, the Seller must notify the Buyer of any objections to the Buyer’s calculation of the 2015 Net Sales and the Base Earn-out Payment and the basis for such disagreements. If the Seller does not so notify the Buyer within such thirty (30) calendar day period of the Seller’s objections to Buyer’s calculation of the 2015 Net Sales or the amount of the Base Earn-out Payment as set forth in the Calculation Statement, then the 2015 Net Sales and the amount of the Base Earn-out Payment as set forth in the Calculation Statement shall be final hereunder. If the Seller does notify the Buyer within such thirty (30) calendar day period that the Seller of its objection in accordance with this paragraph, then the Buyer and the Seller shall use their good faith efforts to attempt to resolve such disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute. If the Buyer and the Seller are unable to resolve the disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute, then the Buyer and the Seller shall jointly engage the Accounting Arbitrator (in accordance with the procedure for selecting the Accounting Arbitrator set forth in Section 2.2(b)) to resolve finally such disputed items. The scope of the Accounting Arbitrator’s engagement shall be limited to the resolution of the disputed items described in the Seller’s notice of disputeApplicable Percentages, in each case in accordance with GAAP, and the recalculation, if any, of the 2015 Net Sales and the amount of the Base Earn-out Payment in light of such resolutionless any amounts required by Law to be withheld or deducted; provided, that however, upon any distribution of Retained Amounts or Earnout Holdback Amounts after Final Resolution of Unresolved Claims, the Accounting Arbitrator former holders of Series A Preferred shall not assign a dollar amount receive 100% of their Applicable Percentages of the Earnout Holdback Amount retained pursuant to clause (B) of the preceding sentence prior to any item in dispute greater than the greatest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable), or lower than the lowest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable). The determination distribution of the Accounting Arbitrator shall be made as promptly as possible and shall be final and binding upon Earnout Holdback Amount retained pursuant to clause (A) of the Parties, absent manifest error. The Buyer and the Seller shall each be permitted to submit such data and information relating preceding sentence to the unresolved disputed items described in the Seller’s notice holders of dispute to the Accounting Arbitrator as such party deems appropriate. The expenses and fees of the Accounting Arbitrator shall be paid by the Buyer, on the one hand, and the Seller, on the other hand, based upon the percentage that the amount not actually awarded to such party bears to the amount actually contested by such party. The 2015 Net Sales and the amount of the Base Earn-out Payment as finally agreed by the Buyer and the Seller or as determined by the Accounting Arbitrator as described herein shall be the 2015 Net Sales and the amount of the Base Earn-out Payment for all purposes hereofCompany Common Stock.

Earn-Out. (a) No later than January 31, 2016As additional consideration for the Purchased Assets, the Buyer will pay to Seller an earn-out over four (4) years of up to $1,000,000 in cash or stock of Buyer (payment in either cash or stock shall deliver be agreed to by both the Seller a statement and Buyer at such time as the payment may be due), based on certain performance criteria set forth in Schedule 1.4 (the “Calculation StatementEarn-Out”), and subject to the limitations and conditions contained herein. Within 60 days following the conclusion of each 12-month period (September 1, 2012, September 1, 2013, September 1, 2014 and September 1, 2015) , Buyer shall prepare financial statements showing EBITDA with the earn-out above target in each such period (the “Earn-Out Statements”) setting and deliver them to Seller. Unless there is a disagreement (which shall be resolved as set forth below), Buyer shall promptly make the Buyer’s calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment payable Out Payments, if any, in cash via wire transfers of funds to the account of Seller in accordance with the formula set forth in Section 7.11(b), below. During the thirty (30) calendar day period following delivery of the Calculation Statement, the Buyer shall promptly furnish to the Seller such financial, operating and other data and information related to the preparation of the Calculation Statement and the calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment as the Seller may reasonably request. Within thirty (30) calendar days after receipt of the Calculation Statement from the Buyer, the Seller must notify the Buyer of any objections to the Buyer’s calculation of the 2015 Net Sales and the Base Earn-out Payment and the basis for such disagreements. If the Seller does not so notify the Buyer within such thirty (30) calendar day period of the Seller’s objections to Buyer’s calculation of the 2015 Net Sales instructions, or the amount of the Base Earn-out Payment as set forth in the Calculation Statement, then the 2015 Net Sales and the amount of the Base Earn-out Payment as set forth in the Calculation Statement shall be final hereunder. If the Seller does notify the Buyer within such thirty (30) calendar day period that the Seller of its objection in accordance with this paragraph, then the Buyer and the Seller shall use their good faith efforts to attempt to resolve such disputed items within thirty (30) calendar days after receipt by the Buyer issuance of stock should the Seller’s notice of dispute. If the Buyer and the Seller are unable to resolve the disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute, then the Buyer and the Seller shall jointly engage the Accounting Arbitrator (in accordance with the procedure for selecting the Accounting Arbitrator set forth in Section 2.2(b)) to resolve finally parties agree that such disputed items. The scope of the Accounting Arbitrator’s engagement shall be limited to the resolution of the disputed items described in the Seller’s notice of dispute, in each case in accordance with GAAP, and the recalculation, if any, of the 2015 Net Sales and the amount of the Base Earn-out Payment in light of such resolution; provided, that the Accounting Arbitrator shall not assign a dollar amount to any item in dispute greater than the greatest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable), or lower than the lowest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable). The determination of the Accounting Arbitrator payment shall be made as promptly as possible and in stock. Each of the Earn-Out Statements shall be final and binding upon the Partiesparties hereto unless Seller shall notify Buyer in writing, absent manifest errornot later than ten (10) days from Seller’s receipt of the Earn-Out Statement of a disagreement. The Such notice of disagreement shall specify all items as to which there is disagreement, and provide an explanation of the basis for such disagreement. During the ten-day review period, Seller shall have full access to the appropriate Buyer books and records, and to the employees, representatives and agents of Buyer who prepared, or assisted in the preparation of, the Earn-Out Statement. Seller’s failure to timely notify Buyer in writing of the existence of a disagreement shall be deemed, for all purposes, Seller’s acceptance of the Earn-Out Statement. In the event and to the extent that Seller shall timely notify Buyer in writing of a disagreement with an Earn-Out Statement (the “Earn-Out Disagreement”), the parties hereto shall attempt, in good faith, to resolve such Earn-Out Disagreement. In the event that the parties are unable to resolve such Earn-Out Disagreement within ten business days from the date of receipt by Buyer of notice from Seller of the Earn-Out Disagreement, Buyer and the Seller shall each be permitted jointly select an independent public accounting firm to resolve the Earn-Out Disagreement (the “Accountants”). Each of Seller and Buyer shall submit such data and information relating to the unresolved disputed items described in Accountants its proposal to settle the Seller’s notice of dispute Earn-Out Disagreement. Further, the parties shall submit to the Accounting Arbitrator as such party deems appropriate. The expenses and fees of the Accounting Arbitrator shall be paid by the Buyer, on the one handAccountants all relevant financial data, and the Earn-Out Disagreement shall be submitted for final and binding arbitration and resolution before representatives of the Accountants. After completing their review of the Earn-Out Disagreement, the Accountants shall resolve each item in dispute and confirm their conclusion in writing to Seller and Buyer. The decision of the Accountants, which shall be confirmed in writing to Seller and Buyer, shall be final and binding upon the parties hereto for all purposes and enforceable in any court of competent jurisdiction. Within ten days following the decision of the Accountants, Buyer shall make the required payment (if any) to the Seller. The fees and costs of the Accountants, on if any, in connection with such arbitration shall be shared by Seller and Buyer in inverse proportion to the other handrelative amounts of the disputed amount determined to be for the account of Seller and Buyer, respectively. Provided, however, each of the Earn-Out Statements may be subject to adjustment based upon the percentage that the amount not actually awarded to such party bears to the amount actually contested by such party. The 2015 Net Sales year end (December 31) fiscal audit of Buyer and the amount of the Base Earn-out Payment as finally agreed its facilities by the Buyer and the Seller or as determined by the Accounting Arbitrator as described herein shall be the 2015 Net Sales and the amount of the Base Earn-out Payment independent accountants for all purposes hereofBuyer.

Earn-Out. (a) No later than January 31As part of the Purchase Price payable hereunder, 2016, the Buyer Purchaser shall deliver pay to the Seller a statement $3,000,000 (the “Calculation StatementEarn-Out Payment”) in cash as an earn-out payment to be determined as follows: (a)The Earn-Out Payment shall be based on the outstanding principal balance (including Poolable Advances) of Mortgage Loans that are issued by the Company into GNMA HMBS pools for securitization of Mortgage Loans for the six-month period ending on December 31, 2013, as set forth on the production reports produced by management of the Company for such period. If the Company issues a number of such Mortgage Loans during such six-month period with an aggregate outstanding principal balance (including Poolable Advances) of at least $659,389,000, Purchaser shall pay to Seller $3,000,000 in cash in accordance with Section 3.5(b) below. 18 (b)No later than 30 days after the end of the period on which an Earn-Out Payment is based or the Closing occurs, whichever is later, Purchaser will deliver to Seller a notice (the “Earn-Out Notice”) setting forth the BuyerPurchaser’s calculation of the 2015 Net Sales outstanding principal balance (including Poolable Advances) of Mortgage Loans that were issued by the Company into GNMA HMBS pools for securitization of Mortgage Loans for the applicable period. If Seller is entitled to the Earn-Out Payment, Purchaser shall make the Earn-Out Payment within 10 Business Days after delivery of the Earn-Out Notice. If Seller is not entitled to the Earn-Out Payment, and Seller disagrees with the Purchaser’s calculation, Seller shall notify Purchaser no later than 15 days after the Earn-Out Notice is delivered of its objections and the basis therefor in reasonable detail. Failure of Seller to notify Purchaser of disagreement with the matters set forth in the Earn-Out Notice within 15 days after delivery of the Earn-Out Notice shall be deemed to be concurrence. If an objection is made, Purchaser and Seller will negotiate in good faith to reach an agreement regarding the matters in dispute. Purchaser shall provide Seller and its Affiliates and their authorized Representatives with reasonable access to the relevant books, records, facilities, employees and representatives of the Company reasonably requested by Seller to evaluate and assess the calculation of the Statements, in each case subject to the terms and conditions set forth in Section 6.2. If Seller and Purchaser are unable to resolve such dispute within 30 days, the disputed item(s) shall be submitted to a neutral and impartial, nationally recognized certified public accounting firm. If the report of such accounting firm concludes that Seller is entitled to the Earn-Out Payment, Purchaser shall make such payment within 10 Business Days of the issuance of the report, plus interest on such amount from the date the Earn-Out Payment would have originally been required to have been made up to but excluding the date on which such payment is made at a rate per annum equal to the Federal Funds Rate as of the Closing Date, calculated on the basis of a year of 360 days and the actual number of days elapsed. Any payment under this Section 3.5(b) shall be made by federal funds wire transfer of immediately available funds to the account(s) of Seller, which account(s) shall be identified by Seller to Purchaser as soon as practicable following the determination of the amount of the Base Earn-out Payment payable Out Payment. (c)Purchaser shall cause the Company to operate in the pre-Closing Ordinary Course, without accelerating or delaying or otherwise deviating in any material respect from the historical securitization practices prior to the Closing Date, from the Closing Date through December 31, 2013. (d)For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, (i) Purchaser shall have the right to set off the amount of any payments owed to Seller pursuant to this Section 3.5 against any indemnification payment owed to a Purchaser Indemnified Party in accordance with the formula set forth in Article X. Section 7.11(b), below. During the thirty (30) calendar day period following delivery of the Calculation Statement, the Buyer shall promptly furnish to the Seller such financial, operating and other data and information related to the preparation of the Calculation Statement and the calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment as the Seller may reasonably request. Within thirty (30) calendar days after receipt of the Calculation Statement from the Buyer, the Seller must notify the Buyer of any objections to the Buyer’s calculation of the 2015 Net Sales and the Base Earn-out Payment and the basis for such disagreements. If the Seller does not so notify the Buyer within such thirty (30) calendar day period of the Seller’s objections to Buyer’s calculation of the 2015 Net Sales or the amount of the Base Earn-out Payment as set forth in the Calculation Statement, then the 2015 Net Sales and the amount of the Base Earn-out Payment as set forth in the Calculation Statement shall be final hereunder. If the Seller does notify the Buyer within such thirty (30) calendar day period that the Seller of its objection in accordance with this paragraph, then the Buyer and the Seller shall use their good faith efforts to attempt to resolve such disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute. If the Buyer and the Seller are unable to resolve the disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute, then the Buyer and the Seller shall jointly engage the Accounting Arbitrator (in accordance with the procedure for selecting the Accounting Arbitrator set forth in Section 2.2(b)) to resolve finally such disputed items. The scope of the Accounting Arbitrator’s engagement shall be limited to the resolution of the disputed items described in the Seller’s notice of dispute, in each case in accordance with GAAP, and the recalculation, if any, of the 2015 Net Sales and the amount of the Base Earn-out Payment in light of such resolution; provided, that the Accounting Arbitrator shall not assign a dollar amount to any item in dispute greater than the greatest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable), or lower than the lowest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable). The determination of the Accounting Arbitrator shall be made as promptly as possible and shall be final and binding upon the Parties, absent manifest error. The Buyer and the Seller shall each be permitted to submit such data and information relating to the unresolved disputed items described in the Seller’s notice of dispute to the Accounting Arbitrator as such party deems appropriate. The expenses and fees of the Accounting Arbitrator shall be paid by the Buyer, on the one hand, and the Seller, on the other hand, based upon the percentage that the amount not actually awarded to such party bears to the amount actually contested by such party. The 2015 Net Sales and the amount of the Base Earn-out Payment as finally agreed by the Buyer and the Seller or as determined by the Accounting Arbitrator as described herein shall be the 2015 Net Sales and the amount of the Base Earn-out Payment for all purposes hereof.3.6

Earn-Out. As additional consideration for the Purchased Assets, for a period of three years following the first day of the month immediately following the Closing (the "Earn Out Period"), Buyer shall pay to the Escrow Agent or Seller (as set forth below) an amount equal to 25% of the annual EBITDA generated by Buyer after the Closing (whether Buyer is operating out of the Leased Real Property or otherwise) from the Existing Suppliers up to a maximum of $300,000 per year (the "Earn Out Payments"). The amount of each Earn Out Payment shall be determined in accordance with GAAP and MTLM's reasonable standard accounting practices, consistently applied (it being understood that the calculation of EBIDTA for purposes of determining each Earn Out Payment shall include a reasonable allocation of certain general and administrative expenses incurred by Metal Management Northeast, Inc. but shall not include an allocation of any general and administrative expenses incurred by Metal Management, Inc.). The Earn Out Payments, if any, for the first two years of the Earn Out Period shall be paid by Buyer to the Escrow Agent no later than the 45th day after the end of the applicable one-year period. The Earn Out Payment for the third year of the Earn Out Period shall be paid as follows: (a) No later than January 31if at the end of the third year of the Earn Out Period Buyer has asserted a claim for indemnification pursuant to Section 12.3 which has not been resolved (and which claim is in excess of the amount then held in Escrow), 2016, the then Buyer shall deliver pay to (i) the Seller a statement (the “Calculation Statement”) setting forth the Buyer’s calculation of the 2015 Net Sales and Escrow Agent the amount of the Base Earn-out Payment payable to the Seller in accordance with the formula set forth in Section 7.11(b), below. During the thirty (30) calendar day period following delivery of the Calculation Statement, the Buyer shall promptly furnish to the Seller such financial, operating and other data and information related to the preparation of the Calculation Statement and the calculation of the 2015 Net Sales and the amount of the Base Earn-out Payment as the Seller may reasonably request. Within thirty (30) calendar days after receipt of the Calculation Statement from the Buyer, the Seller must notify the Buyer of any objections to the Buyer’s calculation of the 2015 Net Sales and the Base Earn-out Payment and the basis for such disagreements. If the Seller does not so notify the Buyer within such thirty (30) calendar day period of the Seller’s objections to Buyer’s calculation of the 2015 Net Sales or the amount of the Base Earn-out Payment as set forth in the Calculation Statement, then the 2015 Net Sales and the amount of the Base Earn-out Payment as set forth in the Calculation Statement shall be final hereunder. If the Seller does notify the Buyer within such thirty (30) calendar day period that the Seller of its objection in accordance with this paragraph, then the Buyer and the Seller shall use their good faith efforts to attempt to resolve such disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute. If the Buyer and the Seller are unable to resolve the disputed items within thirty (30) calendar days after receipt by the Buyer of the Seller’s notice of dispute, then the Buyer and the Seller shall jointly engage the Accounting Arbitrator (in accordance with the procedure for selecting the Accounting Arbitrator set forth in Section 2.2(b)) to resolve finally such disputed items. The scope of the Accounting Arbitrator’s engagement shall be limited to the resolution of the disputed items described in the Seller’s notice of dispute, in each case in accordance with GAAP, and the recalculationEarn Out Payment, if any, of that is necessary to cause the 2015 Net Sales and the aggregate amount of the Base Earn-out Escrow to equal $600,000 (if the aggregate amount of the Escrow is at such time less than $600,000) and (ii) Seller the remainder of the Earn Out Payment in light and (b) if at the end of such resolution; providedthe third year of the Earn Out Period Buyer has not asserted a claim for indemnification pursuant to Section 12.3 which has not been resolved, that then Buyer shall make the Accounting Arbitrator shall not assign a dollar amount final Earn Out Payment directly to any item in dispute greater than the greatest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable), or lower than the lowest dollar amount for such item assigned by the Buyer, on the one hand, or the Seller, on the other hand (as applicable). The Earn Out Payments that are paid to the Escrow Agent shall be released from Escrow as and to the extent provided in the Escrow Agreement. Buyer shall provide Seller with reasonable access to those of its books and records which are relevant to the determination of the Accounting Arbitrator Earn Out Payments for the purpose of allowing Seller to verify the accuracy of Buyer's determination thereof. It is expressly understood that, subsequent to the Closing, Buyer shall in all respects have complete authority and control over the Business and its manner of operation, including the ability to close or sell all or any portion of the Business and operate the Business in Buyer's sole and absolute discretion without liability of any kind to Seller. Seller's right to receive Earn Out Payments pursuant to this Section 3.2 shall be made as promptly as possible subject to Buyer's authority, control, ability and discretion contemplated by the previous sentence. Buyer and its Affiliates shall be final and binding upon under no obligation whatsoever to operate the Parties, absent manifest error. The Buyer and the Seller shall each be permitted to submit such data and information relating Business subsequent to the unresolved disputed items described Closing in a manner that does not reduce or eliminate the Seller’s notice possibility of dispute to the Accounting Arbitrator as such party deems appropriate. The expenses and fees Seller receiving all or any portion of the Accounting Arbitrator shall be paid by the Buyer, on the one hand, and the Seller, on the other hand, based upon the percentage that the amount not actually awarded to such party bears to the amount actually contested by such party. The 2015 Net Sales and the amount of the Base Earn-out Payment as finally agreed by the Buyer and the Seller or as determined by the Accounting Arbitrator as described herein shall be the 2015 Net Sales and the amount of the Base Earn-out Payment for all purposes hereofany Earn Out Payments.