Common use of Earn-Out Consideration Clause in Contracts

Earn-Out Consideration. (a) For each of the years ending December 31, 2010, 2011 and 2012 (collectively, the “Earn-Out Period”), the Target Stockholders (in the aggregate) shall be entitled to receive (if and to the extent, with respect to any particular Target Stockholder, that such Target Stockholder is entitled to receive Merger Consideration in accordance with Section 1.6), and the Acquiror shall pay, an aggregate amount equal to twenty percent (20%) of revenues (as determined in accordance with U.S. generally accepted accounting principles (“GAAP”), consistently applied during the applicable periods) in excess of $3,600,000 (the “Revenue Minimum”) received by Acquiror (on a consolidated basis together with all of its subsidiaries and affiliates, including the Surviving Corporation) for each such year from the sale of those Target products that were being sold as of the Closing (including any enhancements, modifications or improvements of such products) to (i) customers of Target identified on Exhibit B attached hereto, (ii) each of the Top 25 Lenders as identified in Exhibit B attached hereto, and (iii) customers who purchase products or services under Target’s Loan Mod Forensics brand (including license revenue therefrom), reduced by (Y) the amount of any FTV Contingent Payment made with respect to such year as provided in Section 1.14 and (Z) any Reimbursable Indemnification Payments made by the Principal Stockholders pursuant to Section 9.2(c) (collectively, the “Earn-Out Consideration”). The aggregate Earn-Out Consideration payable pursuant to this Section 1.9 with respect to the Earn-Out Period is referred to herein as the “Merger Consideration.” The Earn-Out Consideration payable for any particular fiscal year during the Earn-Out Period shall be determined by the Acquiror in good faith as soon as practicable (and in any event within forty-five (45) days) after the end of such fiscal year, and a reasonably detailed calculation and itemization thereof shall be promptly delivered to the Exchange Agent and the Principal Stockholders. The Earn-Out Consideration payable for any particular fiscal year during the Earn-Out Period as determined by the Acquiror and set forth in the calculation and itemization thereof shall be deemed to be final and conclusive unless the Principal Stockholders object thereto by written notice to Acquiror within twenty (20) business days after their receipt of the same. If the Principal Stockholders shall so object, the parties shall cooperate in good faith for a period of no less than 30 days to resolve any such dispute in a mutually satisfactory manner. If no such resolution can be obtained within such 30-day period, then the undisputed portion (if any) of the Earn-Out Consideration for the period(s) in question shall be promptly paid by Acquiror and at any time thereafter either party may pursue arbitration as set forth herein to resolve the disputed portion of the Earn-Out Consideration. In such case, the parties agree to the appointment of three (3) arbitrators, with one arbitrator selected by each party, and the third selected by the American Arbitration Association (“AAA”). The arbitration shall be conducted in Alameda County, California in accordance with the commercial arbitration rules, regulations and procedures of the AAA, and the decision of the arbitration panel shall be final and binding on both parties. Judgment on the arbitrators’ award may be entered by any court having jurisdiction. The Earn-Out Consideration (including any undisputed portions thereof), if any, for each particular fiscal year in the Earn Out Period shall be distributed by Acquiror to Exchange Agent promptly upon its final determination (by agreement of the parties or otherwise) and shall therafter shall be promptly distributed by the Exchange Agent to the Target Stockholders in the manner described in Section 1.6 and in accordance with the Merger Consideration Spreadsheet.

Earn-Out Consideration. (a) For each of 2.5.1 During the years ending December 31, 2010, 2011 and 2012 (collectively, the “Earn-Out Period”), in each Earn-Out Year where the EBITDA Adjusted of any of the Operating Corporations is positive, the Target Stockholders (in Purchaser shall pay as part of the aggregate) shall be entitled to receive (if and to the extent, with respect to any particular Target Stockholder, that such Target Stockholder is entitled to receive Merger Consideration in accordance with Section 1.6), and the Acquiror shall pay, Purchase Price an aggregate amount equal to twenty percent (20%) of revenues (as determined in accordance with U.S. generally accepted accounting principles (“GAAP”), consistently applied during the applicable periods) in excess of $3,600,000 (the “Revenue Minimum”) received by Acquiror (on a consolidated basis together with all of its subsidiaries and affiliates, including the Surviving Corporation) for each such year from the sale of those Target products that were being sold as sum of the Closing positive EBITDA Adjusted of each Operating Corporation with a positive EBITDA Adjusted (including any enhancementseach an "Earn-Out Payment" and, modifications or improvements of such products) to (i) customers of Target identified on Exhibit B attached hereto, (ii) each of in aggregate over the Top 25 Lenders as identified in Exhibit B attached hereto, and (iii) customers who purchase products or services under Target’s Loan Mod Forensics brand (including license revenue therefrom), reduced by (Y) the amount of any FTV Contingent Payment made with respect to such year as provided in Section 1.14 and (Z) any Reimbursable Indemnification Payments made by the Principal Stockholders pursuant to Section 9.2(c) (collectivelyEarn-Out Period, the “"Earn-Out Consideration”"). The , it being understood that the aggregate Earn-Out Consideration payable pursuant to this Section 1.9 with respect to the Earn-Out Period is referred to herein as the “Merger Consideration.” The Earn-Out Consideration payable for any particular fiscal year during the Earn-Out Period shall be determined by the Acquiror in good faith as soon as practicable (and in any event within forty-five (45) days) after the end of such fiscal year, and a reasonably detailed calculation and itemization thereof shall be promptly delivered to the Exchange Agent and the Principal Stockholders. The Earn-Out Consideration payable for any particular fiscal year during the Earn-Out Period as determined by the Acquiror and set forth in the calculation and itemization thereof shall be deemed to be final and conclusive unless the Principal Stockholders object thereto by written notice to Acquiror within twenty (20) business days after their receipt of the same. If the Principal Stockholders shall so object, the parties shall cooperate in good faith for a period of no less than 30 days to resolve any such dispute in a mutually satisfactory manner. If no such resolution can be obtained within such 30-day period, then the undisputed portion (if any) of the Earn-Out Consideration for the entire Earn-Out Period shall not exceed TWELVE MILLION EUROS (€12,000,000). Agreement of Purchase and Sale of Shares /24 2.5.2 Notwithstanding the foregoing, but subject to Sections 2.5.3 and 2.5.4, the Vendors will only be entitled to the full Earn-Out Consideration if the following remedial actions have been taken ultimately before the end of the first Earn-Out Year: 2.5.3 If prior to the end of the first Earn-Out Year, the Management Agreement of either D▇▇▇ ▇▇▇ ▇▇▇▇▇ or I▇▇▇▇▇ Brands is terminated by Biostrand for any other reason than a "For Cause by Company" event (as defined in the Management Agreement), Section 2.5.2 will cease to apply. 2.5.4 In light of the actions to be taken on the basis of Section 2.5.2, the Purchaser shall take all actions, furnish all documents [Content relates to confidential matters of the parties.] and provide all such support as may be required or reasonably requested to enable the Operating Corporations to complete such remedial actions prior to the end of the first Earn-Out Year. For greater clarity, any costs relating to the implementation of the remedial actions to be taken on the basis of Section 2.5.2 shall be borne exclusively by the respective Operating Corporations only. The Parties shall meet at regular intervals and at least on a monthly basis to discuss the status of implementation and confirm the completed and outstanding items. In the event all remedial actions have been taken, the Purchaser shall confirm so in writing to the Vendors within three (3) Business Days following completion of the last action or following the date on which it was notified hereof by the Vendors (as the case may be), such confirmation not to be unreasonably withheld, conditioned or delayed. In the event the majority of but not all of the remedial actions have been taken by the end of the first Earn-Out Year, the remediation period shall be extended once with 3 months or any other extension period(s) in question agreed upon between the Parties. Pending completion of such remaining actions, the Vendors' entitlement to any Earn-Out Consideration shall not lapse but shall be promptly paid by Acquiror suspended until such date (it being understood that any Earn-Out Payment shall only be due and at payable in accordance with this Section 2.5). In the event of any time thereafter either party may pursue arbitration as set forth herein dispute, the Parties agree to resolve such dispute by adhering to the disputed portion dispute resolution process provided for in Section 3.1.4 to Section 3.1.9, the applicable provisions of which are hereby incorporated by reference mutatis mutandis. 2.5.5 Within ninety (90) days after the approval of financial statements of the Operating Corporations for any Earn-Out Year by IPA audit committee after the annual audit is completed, the Purchaser shall deliver to the Vendors: 2.5.5.1 the financial statements of each Operating Corporation for the relevant Earn-Out Year, in accordance with the applicable Accounting Principles (each, an "Earn-Out Financial Statement"); and 2.5.5.2 the detailed calculation of the EBITDA and the EBITDA Adjusted of each Operating Corporation and the determination in accordance with Section 2.5.1 of the total resulting Earn-Out Payment payable with respect to the relevant Earn-Out Year (the "Earn-Out Calculation"). 2.5.6 The Vendors and their Representatives shall be permitted access to the accountant, the personnel and all Books and Records and working papers relevant to the Earn-Out Financial Statements and the Earn-Out Calculation (in accordance with customary confidentiality undertakings and protocols regarding such access, which shall not unreasonably prejudice the Vendors' right of review hereunder). 2.5.7 The Vendors may object to any Earn-Out Calculation by Objection Notice within ninety (90) days following receipt thereof. If no Objection Notice is made within the period and in the manner specified in the preceding sentence, or if the Purchaser and the Vendors confirm in writing that they accept the Earn-Out Calculation prior to the end of such ninety (90) day period, then the Earn-Out Calculation shall be conclusive, final and binding with respect to the Parties who have accepted, without possibility of amendment or appeal and shall constitute the final Earn-Out Calculation with respect to the relevant Earn-Out Year. If an Objection Notice is delivered in the manner and within the ninety (90) period specified in this Section 2.5.7, the Parties agree to resolve such dispute by adhering to the dispute resolution process provided for in Section 3.1.4 to Section 3.1.9, the applicable provisions of which are hereby incorporated by reference mutatis mutandis. Agreement of Purchase and Sale of Shares /26 2.5.8 Within thirty (30) days of the Earn-Out ConsiderationCalculation for the relevant Earn-Out Year becoming final, the Purchaser shall pay the Earn-Out Payment for the relevant Earn-Out Year to the specific bank account or accounts designated in writing by the Vendors, in accordance with the Allocation Percentage. 2.5.9 None of the Vendors shall be eligible for any future Earn-Out Payment in the event that the Management Agreement of either D▇▇▇ ▇▇▇ ▇▇▇▇▇ or I▇▇▇▇▇ Brands is terminated: 2.5.9.1 by the management company for a reason other than of a "For Cause by Manager" event (as defined in the Management Agreement); or 2.5.9.2 by Biostrand for a reason of a "For Cause by Company" event (as defined in the Management Agreement), save and except in the event where, due to their ill health or accident, either D▇▇▇ ▇▇▇ ▇▇▇▇▇ or I▇▇▇▇▇ Brands would (i) on a permanent basis be no longer available to render the services or (ii) be unavailable to render the services for a period of more than sixty (60) consecutive days over a period of twelve (12) months ("Permanently Incapacited"). 2.5.10 Nothwithstanding the foregoing, all of the Vendors shall be eligible for any future Earn-Out Payment as per their Allocation Percentage, in the event that the Management Agreement of either D▇▇▇ ▇▇▇ ▇▇▇▇▇ or I▇▇▇▇▇ Brands is terminated: 2.5.10.1 by the management company for a reason of a "For Cause by Manager" event (as defined in the Management Agreement); or 2.5.10.2 by Biostrand for a reason other than of a "For Cause by Company" event (as defined in the Management Agreement). 2.5.11 In the event that D▇▇▇ ▇▇▇ ▇▇▇▇▇ dies or is Permanently Incapacited, then Idea Partnership 1 shall be entitled to receive its Earn-Out Payment for the relevant Earn-Out Year in accordance with its Allocation Percentage on a prorata basis of the number of months of its management company' services to the Operating Corporations for such Earn-Out Year. In such case, the parties agree Idea Partnership 1 will not be eligible for a Earn-Out Payment for any subsequent Earn-Out Year but Idea Partnership 2 and K&E shall still be eligible to the appointment Earn-Out Payment, subject to the provisions of three (3) arbitratorsthis Section 2.5. 2.5.12 In the event that I▇▇▇▇▇ Brands dies or is Permanently Incapacited, with one arbitrator selected by each party, and the third selected by the American Arbitration Association (“AAA”). The arbitration then Idea Partnership 2 shall be conducted in Alameda County, California entitled to receive its Earn-Out Payment for the relevant Earn-Out Year in accordance with the commercial arbitration rules, regulations and procedures its Allocation Percentage on a prorata basis of the AAA, and number of months of its management company' services to the decision of the arbitration panel shall be final and binding on both parties. Judgment on the arbitrators’ award may be entered by any court having jurisdiction. The Operating Corporations for such Earn-Out Consideration Year. In such case, Idea Partnership 2 will not be eligible for a Earn-Out Payment for any subsequent Earn-Out Year but Idea Partnership 1 and K&E shall still be eligible to the Earn-Out Payment, subject to the provisions of this Section 2.5. Agreement of Purchase and Sale of Shares /27 2.5.13 The Purchaser shall not take any actions or omit to take any actions (including any undisputed portions thereof)but not limited to changes in revenue recognition other than required by Law) with the intent of reducing, if any, for each particular fiscal year in avoiding or frustrating the Earn Earn-Out Period Consideration. 2.5.14 Any Earn-Out Payment payable under this Section 2.5 shall be distributed by Acquiror to Exchange Agent promptly upon its final determination (by agreement of the parties or otherwise) and shall therafter shall be promptly distributed by the Exchange Agent deemed an upward adjustment to the Target Stockholders in the manner described in Section 1.6 and in accordance with the Merger Consideration SpreadsheetPurchase Price on a euro-for-euro basis.

Earn-Out Consideration. (a) For each of In addition to the years ending December 31, 2010, 2011 and 2012 (collectivelyAdjusted Purchase Price, the “Earn-Out Period”), the Target Stockholders (in the aggregate) Buyer shall be entitled to receive (if and pay additional consideration of $14,200,000 to the extent, Sellers (with respect such consideration to any particular Target Stockholder, that such Target Stockholder is entitled to receive Merger Consideration be allocated among the Sellers in accordance with the percentages set forth on Schedule I) subject to the terms and conditions set forth in this Section 1.61.8. The aggregate amount payable by the Buyer pursuant to this Section 1.8(a), and after the Acquiror shall paydeduction of damages, an aggregate amount equal is referred to twenty percent (20%) of revenues (herein as determined in accordance with U.S. generally accepted accounting principles (“GAAP”), consistently applied during the applicable periods) in excess of $3,600,000 (the “Revenue Minimum”) received by Acquiror (on a consolidated basis together with all of its subsidiaries and affiliates, including the Surviving Corporation) for each such year from the sale of those Target products that were being sold as of the Closing (including any enhancements, modifications or improvements of such products) to (i) customers of Target identified on Exhibit B attached hereto, (ii) each of the Top 25 Lenders as identified in Exhibit B attached hereto, and (iii) customers who purchase products or services under Target’s Loan Mod Forensics brand (including license revenue therefrom), reduced by (Y) the amount of any FTV Contingent Payment made with respect to such year as provided in Section 1.14 and (Z) any Reimbursable Indemnification Payments made by the Principal Stockholders pursuant to Section 9.2(c) (collectively, the “Earn-Out Consideration” and the aggregate value of the Adjusted Purchase Price plus the Earn-Out Consideration is referred to herein as the “Aggregate Consideration”. Earn-Out Consideration shall be payable as follows: (i) in respect of the First Period (as defined in Section 1.8(b) below), consideration of $6,000,000, less any damages calculated by reference to Section 1.8(b), shall be paid once Company EBITDA for the First Period has been finally determined, provided that the aggregate amount payable pursuant to this Section 1.8(a)(i) shall not exceed $6,000,000 (the aggregate amount actually payable pursuant to this Section 1.8(a)(i) as finally determined being referred to as the “First Period Earn-Out Consideration”); (ii) in respect of the Second Period (as defined in Section 1.8(c) below), consideration of $14,200,000, less any damages calculated by reference to Section 1.8(c), shall be paid once Combined Business EBITDA for the Second Period has been finally determined, provided that the aggregate amount payable pursuant to this Section 1.8(a)(ii) shall not exceed $14,200,000 minus the First Period Earn-Out Consideration (the aggregate amount actually payable pursuant to this Section 1.8(a)(ii) as finally determined being referred to as the “Second Period Earn-Out Consideration”); (iii) in respect of the Third Period (as defined in Section 1.8(d) below), consideration of $14,200,000, less any damages calculated by reference to Section 1.8(d), shall be paid once Combined Business EBITDA for the Third Period has been finally determined, provided that the aggregate amount actually payable pursuant to this Section 1.8(a)(iii) shall not exceed $14,200,000 minus the First Period Earn-Out Consideration and minus the Second Period Earn-Out Consideration. (b) The Sellers, jointly and severally, hereby represent and warrant to the Buyer that the Company EBITDA for the period from July 1, 2012 through June 30, 2013 (the “First Period”) shall not be less than $4,200,000, and to the extent that it is less than $4,200,000 then the Sellers shall pay damages to the Buyer calculated as follows: (i) if the Company EBITDA for the First Period is less than $3,000,000, damages in the amount of $6,000,000; (ii) if the Company EBITDA for the First Period is between $3,000,000 and $4,200,000, the amount of damages shall be the product of (A) the amount by which the Company EBITDA for the First Period is less than $4,200,000 and (B) five (5); and (iii) if the Company EBITDA for the First Period is equal to or exceeds $4,200,000, the amount of damages shall be nil. (c) The Sellers, jointly and severally, hereby represent and warrant that the Combined Business EBITDA for the period from July 1, 2013 through June 30, 2014 (the “Second Period”) shall exceed $5,735,000, and to the extent that it does not exceed $5,735,000 then the Sellers shall pay damages to the Buyer calculated as follows: (i) if the Combined Business EBITDA for the Second Period is less than $4,200,000, damages in the amount of $14,200,000; (ii) if the Combined Business EBITDA for the Second Period is equal to or exceeds $4,200,000, but is less than $5,735,000, the amount of damages shall be the product of (A) the amount by which the Combined Business EBITDA for the Second Period is less than $5,735,000 and (B) nine and one-quarter (9.25); (iii) if the Combined Business EBITDA for the Second Period is equal to or exceeds $5,735,000, the amount of damages shall be nil. (d) The Sellers, jointly and severally, hereby represent and warrant that the Combined Business EBITDA for the period from July 1, 2014 through June 30, 2015 (the “Third Period”) shall exceed $7,532,258 and to the extent that it does not exceed $7,532,258 then the Sellers shall pay damages to the Buyer calculated as follows: (i) if the Combined Business EBITDA for the Third Period is less than $5,700,000, damages in the amount of $14,200,000; (ii) if the Combined Business EBITDA for the Third Period is equal to or exceeds $5,700,000, but is less than $7,532,258, the amount of damages shall be the product of (A) the amount by which the Combined Business EBITDA for the Third Period is less than $7,532,258 and (B) seven and three-quarters (7.75); (iii) if the Combined Business EBITDA for the Third Period is equal to or exceeds $7,532,258, the amount of damages shall be nil. (e) Notwithstanding any other provision in this Agreement to the contrary, in no event shall the aggregate Earn-Out Consideration payable, net of damages, exceed $14,200,000 and in no event shall the damages payable by the Sellers pursuant to Sections 1.8(b) to (d) exceed $14,200,000 in aggregate. The aggregate Any damages which the Sellers are required to pay pursuant to Sections 1.8(b) to (d) shall be set-off so as to reduce the Earn-Out Consideration payable pursuant to this Section 1.9 with respect to the Earn-Out Period is referred to herein as the “Merger Consideration.” The Earn-Out Consideration payable for any particular fiscal year during the Earn-Out Period shall be determined by the Acquiror in good faith as soon as practicable (and in any event within forty-five (45) days) after the end of such fiscal year, and a reasonably detailed calculation and itemization thereof shall be promptly delivered to the Exchange Agent and the Principal Stockholders. The Earn-Out Consideration payable for any particular fiscal year during the Earn-Out Period as determined by the Acquiror and set forth in the calculation and itemization thereof shall be deemed to be final and conclusive unless the Principal Stockholders object thereto by written notice to Acquiror within twenty (20) business days after their receipt of the same. If the Principal Stockholders shall so object, the parties shall cooperate in good faith for a period of no less than 30 days to resolve any such dispute in a mutually satisfactory manner. If no such resolution can be obtained within such 30-day period, then the undisputed portion (if any) of the Earn-Out Consideration for the period(s) in question shall be promptly paid by Acquiror and at any time thereafter either party may pursue arbitration as set forth herein to resolve the disputed portion of the Earn-Out Consideration. In such case, the parties agree to the appointment of three (3) arbitrators, with one arbitrator selected by each party, and the third selected by the American Arbitration Association (“AAA”1.8(a). The arbitration sole and exclusive remedy of the Buyer in respect of any breaches of the representations and warranties in Sections 1.8(b) to (d) shall be conducted in Alameda Countyits rights of set off under this Section 1.8(e). Under no circumstances shall the Sellers be liable for any loss, California in accordance with damage or other claim alleged or suffered by the commercial arbitration rules, regulations and procedures Buyer for breach of the AAArepresentations and warranties in Sections 1.8(b) to (d). (f) For purposes of this Section 1.8, and the decision of following terms shall have the arbitration panel shall be final and binding on both parties. Judgment on the arbitrators’ award may be entered by any court having jurisdiction. The Earn-Out Consideration (including any undisputed portions thereof), if any, for each particular fiscal year in the Earn Out Period shall be distributed by Acquiror to Exchange Agent promptly upon its final determination (by agreement of the parties or otherwise) and shall therafter shall be promptly distributed by the Exchange Agent to the Target Stockholders in the manner described in Section 1.6 and in accordance with the Merger Consideration Spreadsheet.respective meanings set forth below:

Earn-Out Consideration. (a) For each 6.4.1 In addition to the Closing Share Consideration, the Sellers shall be entitled to a one-time payment of the years Earn-Out Consideration (as defined below) if the Company's net revenues are equal or higher than USD 100,000,000 for the 12-month earn-out period ending December 31, 2010, 2011 and 2012 on 31 March 2022 (collectively, the “"Earn-Out Period”), the Target Stockholders (in the aggregate) shall be entitled to receive (if and to the extent, with respect to any particular Target Stockholder, that such Target Stockholder is entitled to receive Merger Consideration in accordance with Section 1.6), and the Acquiror shall pay, an aggregate amount equal to twenty percent (20%) of revenues (as determined in accordance with U.S. generally accepted accounting principles (“GAAP”), consistently applied during the applicable periods) in excess of $3,600,000 (the “Revenue Minimum”) received by Acquiror (on a consolidated basis together with all of its subsidiaries and affiliates, including the Surviving Corporation) for each such year from the sale of those Target products that were being sold as of the Closing (including any enhancements, modifications or improvements of such products) to (i) customers of Target identified on Exhibit B attached hereto, (ii) each of the Top 25 Lenders as identified in Exhibit B attached hereto, and (iii) customers who purchase products or services under Target’s Loan Mod Forensics brand (including license revenue therefrom), reduced by (Y) the amount of any FTV Contingent Payment made with respect to such year as provided in Section 1.14 and (Z) any Reimbursable Indemnification Payments made by the Principal Stockholders pursuant to Section 9.2(c) (collectively, the “Earn-Out Consideration”"). The aggregate Earn-Out Consideration payable pursuant to this Section 1.9 with respect to the Earn-Out Period is referred to herein as the “Merger Consideration.” The Earn-Out Consideration payable net revenues for any particular fiscal year during the Earn-Out Period shall be determined in a manner consistent with plan projections provided by the Acquiror Company's management and based on management accounts, prepared in good faith as soon as practicable (and in any event within fortyaccordance with the provisions of IFRS applied on a consistent basis, by the Purchaser for the Earn-five (45) days) after the end of such fiscal yearOut Period. The Purchaser shall make available, and a reasonably detailed calculation and itemization thereof shall be promptly delivered at commercially reasonable times, to the Exchange Agent Sellers and their representatives all requisite books and records of the Principal StockholdersTarget Group to the extent necessary for their review of the relevant financial statements. The Earn-Out Consideration shall become due and payable for any particular fiscal year during within 30 Business Days after the Earn-Out Period as determined by the Acquiror and set forth in the calculation and itemization thereof shall be deemed to be final and conclusive unless the Principal Stockholders object thereto by written notice to Acquiror within twenty (20) business days after their receipt of the same. If the Principal Stockholders shall so object, the parties shall cooperate in good faith for a period of no less than 30 days to resolve any such dispute in a mutually satisfactory manner. If no such resolution can be obtained within such 30-day period, then the undisputed portion (if any) end of the Earn-Out Consideration for the period(s) in question Period. 6.4.2 Earn-Out Consideration" shall be promptly paid the number of newly issued shares of Purchaser’s Parent Common Stock determined by Acquiror and at any time thereafter either party may pursue arbitration dividing the Earn-Out Amount (as set forth herein defined below) by the Earn-Out Price (as defined below); provided, however, that the aggregate number of shares of Purchaser’s Parent Common Stock issuable as Earn-Out Consideration pursuant to resolve this Sec. 6.4 shall not exceed the disputed portion Earn-Out Maximum Share Amount (as defined below); and, provided, further, that, in the event that the value of the Earn-Out Consideration. In such caseMaximum Share Amount (based on the Earn-Out Price) is less than the Earn-Out Amount, the parties agree to the appointment of three (3) arbitrators, with one arbitrator selected by each party, and the third selected by the American Arbitration Association (“AAA”). The arbitration shall be conducted in Alameda County, California in accordance with the commercial arbitration rules, regulations and procedures of the AAA, and the decision of the arbitration panel shall be final and binding on both parties. Judgment on the arbitrators’ award may be entered by any court having jurisdiction. The Earn-Out Consideration (including any undisputed portions thereof), if any, for each particular fiscal year in the Earn Out Period shall be distributed by Acquiror to Exchange Agent promptly upon its final determination (by agreement of the parties or otherwise) Earn-Out Maximum Share Amount and shall therafter shall be promptly distributed by the Exchange Agent to the Target Stockholders in the manner described in Section 1.6 and in accordance with the Merger Consideration SpreadsheetEarn-Out Cash Amount.

Earn-Out Consideration. (a) For each of the years ending December 31, 2010, 2011 and 2012 (collectively, the “Earn-Out Period”), the Target The Stockholders (in the aggregate) collectively shall be entitled to receive (if and to the extent, with respect to any particular Target Stockholder, that such Target Stockholder is entitled to receive Merger Consideration in accordance with Section 1.6), and the Acquiror shall pay, an aggregate amount equal to twenty percent 50% of the amount by which (20%i) of revenues the Company's earnings before taxes (as determined the "EBT"), computed in accordance with U.S. generally accepted accounting principles (“"GAAP”"), consistently applied during for the applicable periods) in excess period beginning on the first day of $3,600,000 the month immediately following the Closing Date and ending twelve months thereafter (the “Revenue Minimum”"First Anniversary Date"), exceeds (ii) received by Acquiror $15,400,000. (on a consolidated basis together with all of its subsidiaries and affiliates, including the Surviving Corporationb) for each such year from the sale of those Target products that were being sold as The Stockholders collectively shall be entitled to receive an aggregate amount equal to 50% of the Closing (including any enhancements, modifications or improvements of such products) to amount by which (i) customers of Target identified the EBT, computed in accordance with GAAP, for the period beginning on Exhibit B attached heretothe First Anniversary Date and ending twelve months thereafter (the "Second Anniversary Date"; and together with the First Anniversary Date, each an "Anniversary Date"), exceeds (ii) each the greater of (x) the Top 25 Lenders as identified EBT, computed in Exhibit B attached heretoaccordance with GAAP, andfor the twelve month period ending on the First Anniversary Date or (y) $15,400,000. (iiic) customers who purchase products or services under Target’s Loan Mod Forensics brand The amounts (including license revenue therefrom), reduced by (Yif any) that the amount of any FTV Contingent Payment made with respect Stockholders become entitled to such year as provided in Section 1.14 receive pursuant to Sections 2.3(a) and (Zb) any Reimbursable Indemnification Payments made by the Principal Stockholders pursuant to Section 9.2(c) (collectively, the “Earn-Out Consideration”). The aggregate Earn-Out Consideration payable pursuant to this Section 1.9 with respect to the Earn-Out Period is are referred to herein as the “Merger "Earn-Out Consideration.” " The Earn-Out Consideration payable for any particular fiscal year during the Earn-Out Period shall be determined paid 50% in cash and 50% in fully paid and non-assessable shares of UniCapital Stock, valued at the average of the closing prices per share of UniCapital Stock as reported by the Acquiror in good faith as soon as practicable (and in any event within forty-five (45) days) after New York Stock Exchange for the end 10 trading days preceding the Anniversary Date to which the portion of such fiscal year, and a reasonably detailed calculation and itemization thereof shall be promptly delivered to the Exchange Agent and the Principal Stockholders. The Earn-Out Consideration payable for in question applies; provided, however, UniCapital, at its sole discretion, may pay in cash any particular fiscal year during the Earn-Out Period as determined by the Acquiror and set forth in the calculation and itemization thereof shall be deemed to be final and conclusive unless the Principal Stockholders object thereto by written notice to Acquiror within twenty (20) business days after their receipt of the same. If the Principal Stockholders shall so object, the parties shall cooperate in good faith for a period of no less than 30 days to resolve any such dispute in a mutually satisfactory manner. If no such resolution can be obtained within such 30-day period, then the undisputed portion (if any) or all of the Earn-Out Consideration otherwise payable in shares of UniCapital Stock in cash; provided, further, however, UniCapital will not pay any portion otherwise payable in shares of UniCapital Stock in cash if UniCapital reasonably determines, after consultation with the Company's counsel and counsel to the Stockholders, that such payment in cash could reasonably be expected to jeopardize the Stockholders' tax-free receipt of UniCapital Stock under Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"). Any Earn-Out Consideration shall be allocated to each Stockholder in such proportion as is set forth on Annex III. (d) The EBT for each of the First Anniversary Date and the Second Anniversary Date shall be computed within 45 days following the applicable Anniversary Date by Price Waterhouse LLP, or such other accounting firm regularly employed by UniCapital, in accordance with GAAP, and shall be received by each of the Stockholders within such applicable 45-day period. (e) Notwithstanding anything in this Section 2.3 to the contrary, if the Stockholders dispute the determination of the EBT, then the Stockholders' Representative (as defined in Section 3.3) shall notify UniCapital in writing of such dispute and specify the amount thereof of such dispute within 20 business days after notification of the determination of the EBT for the period(sapplicable year. If UniCapital and the Stockholders' Representative cannot resolve any such dispute which would affect the Earn-Out Consideration, then such dispute shall be resolved by an Independent Accounting Firm (as defined in Section 3.2). The determination of the Independent Accounting Firm shall be made as promptly as practicable and shall be final and binding upon the parties, absent manifest error (which error may only be corrected by such Independent Accounting Firm). The Independent Accounting Firm shall only be entitled to decide on any disputed item in favor of the position of the Stockholders, on the one hand, and UniCapital, on the other hand, or any range in between such positions. In rendering its decision, the Independent Accounting Firm shall strictly follow the provisions of this Agreement. The costs of the Independent Accounting Firm shall be borne by the party (either UniCapital, or the Stockholders as a group) whose determination of the EBT, computed in accordance with GAAP, for the period in question was further from the determination of the Independent Accounting Firm. Once the EBT is finally determined, the Earn-Out Consideration attendant thereto shall be promptly paid in accordance with this Section 2.3; provided that in the event the Stockholders' determination of EBT was closer to the determination of the Independent Accounting Firm than UniCapital's determination of EBT, the Stockholders shall receive such Earn-Out Consideration plus interest which shall accrue at the rate of 10% per annum on any such Earn-Out Consideration that is resolved in the Stockholders favor from the date the Earn-Out Consideration was first payable through the date on which the Earn-Out Consideration is received by Acquiror and at the Stockholders. Pending resolution of any time thereafter either party may pursue arbitration as set forth herein to resolve such dispute by the disputed portion Independent Accounting Firm, only the amount of the Earn-Out ConsiderationConsideration as determined by Price Waterhouse LLP shall be paid by UniCapital. In such caseOnce the EBT is finally determined, the parties agree to the appointment of three (3) arbitrators, with one arbitrator selected by each party, and the third selected by the American Arbitration Association (“AAA”). The arbitration shall be conducted in Alameda County, California in accordance with the commercial arbitration rules, regulations and procedures of the AAA, and the decision of the arbitration panel shall be final and binding on both parties. Judgment on the arbitrators’ award may be entered by any court having jurisdiction. The Earn-Out Consideration (including any undisputed portions thereof)attendant thereto not previously paid, if any, for each particular fiscal year in the Earn Out Period shall be distributed by Acquiror to Exchange Agent promptly upon its final determination paid in accordance with this Section 2.3. (by agreement f) Except as set forth in Schedule 2.3(f), the EBT of the parties or otherwise) and shall therafter Company shall be promptly distributed by the Exchange Agent calculated in accordance with GAAP, consistently applied as it relates to the Target Stockholders in Company. (g) Any Earn-Out Consideration paid by UniCapital shall be treated as additional consideration paid by UniCapital for the manner shares of Company Stock and, therefore, shall not be affected by any termination of either of the Employment Agreements described in Section 1.6 and in accordance with the Merger Consideration Spreadsheet9.7.