Common use of CONDUCT OF BUSINESS DURING EARN-OUT PERIOD Clause in Contracts

CONDUCT OF BUSINESS DURING EARN-OUT PERIOD. 2.1 The Parent agrees that during the Earn-Out Period it shall not, and shall procure that each other Buyer’s Group Undertaking shall not, without the written consent of the Institutional Sellers’ Representative and the Management Sellers’ Representative (each consent not to be unreasonably withheld or delayed), take, or omit to take, any action that is intended to reduce, or the principal purpose of which is to reduce, the Actual Gross Contribution and will procure that the Business will be carried on in a commercially reasonable manner consistent with the manner in which the Business was carried in the three month period prior to the Locked Box Date. 2.2 The Parent agrees that during the Earn-Out Period, unless the Institutional Sellers’ Representative and the Management Sellers’ Representative otherwise consent in writing (each consent not to be unreasonably withheld or delayed), the Parent shall: 2.2.1 procure that each Earn-Out Group Company shall continue to operate its business in the ordinary course and without intent to reduce the Actual Gross Contribution; 2.2.2 not take steps, or procure that steps are taken, to voluntarily wind up any Earn-Out Group Company, or to appoint or voluntarily to seek the appointment of any administrator or receiver in respect of substantially all of the assets of a Earn-Out Group Company, save where the directors of an Earn-Out Group Company acting in good faith consider it their duty to cause such winding-up and/or appointment because of the financial or trading position of such Earn-Out Group Company and/or where such Earn-Out Group Company is insolvent or unable to pay its debts as they fall due or save for the purposes of a bona fide reconstruction or intra-group amalgamation; 2.2.3 not, and shall procure that no other Buyer’s Group Undertaking shall, do or say anything which is intended to cause a customer or supplier of the Business to acquire comparable products from a Buyer’s Group Undertaking (other than, in each case, another Earn-out Group Company); 2.2.4 procure that as between the Earn-Out Group Company and the Parent and each of the Buyer Group Undertakings (excluding the Earn-Out Group Company) expenses are allocated in a commercially reasonable manner; and 2.2.5 procure that no Earn-Out Group Company enters into or agrees to enter into any arrangement or agreement with a Buyer’s Group Undertaking (other than, in each case, with another Earn-Out Group Company) that is intended to reduce the Actual Gross Contribution and (i) adversely impacts the Actual Gross Contribution or (ii) is not on arms’ length terms. 2.3 To the extent that the legal or beneficial ownership of any shares in any Earn-Out Group Company or the whole or any substantial part of the Business is transferred to a third party (other than in each case, to another Earn-Out Group Company) (the “Transferred Assets”) and such transfer has an adverse impact on the Actual Gross Contribution then such transfer shall be disregarded for the purposes of the calculation of the Actual Gross Contribution such that in the calculation of the Actual Gross Contribution in accordance with Part B of this Schedule 5: 2.3.1 the relevant Transferred Assets shall be deemed to be included in the definition of the Earn-Out Group for the period from (but excluding) the date on which the Transferred Assets were transferred to (and including) the last day of the Earn-out Period (such period being referred to in this Schedule 5 as the “Stub Period”); and 2.3.2 the actual revenue from sales to third parties less the cost of goods sold in respect of the Transferred Assets for the Earn-Out Period shall instead be calculated as the sum of: (a) the actual revenue in respect of the Transferred Assets (but excluding any sales between the Earn-Out Group Companies) less the third party cost of goods sold in respect of the Transferred Assets for the period from the start of the Earn-Out Period up to (but excluding) the date on which the Transferred Assets were transferred; plus (b) the forecasted revenue for the Stub Period from actual sales of the Transferred Assets (but excluding any sales between the Earn-Out Group Companies) less the forecasted third party cost of goods sold in respect of the Transferred Assets for the Stub Period, in each case calculated by reference to the most recent forecasted revenue from actual sales of, and third party costs of goods sold in respect of, the Transferred Assets prior to the decision to transfer the Transferred Assets. 2.4 If the Earn-Out Group Company enters into an arrangement for the sharing of profits, assets or management with a person other than an Earn-Out Group Company that is intended to reduce, or the principal purpose of which is to reduce, the Actual Gross Contribution, any adverse impact resulting from such arrangement shall be deemed reversed and adjusted for in calculating the Actual Gross Contribution as if such arrangement had not been entered. 2.5 On the occurrence of any of the following events during the Earn-Out Period, the Accelerated Earn-Out Consideration shall immediately become due and payable by the Buyer to the Seller: 2.5.1 a material breach of any of the matters set out in paragraphs 2.1, 2.2 or 2.3 that is not remedied within [REDACTED – Time Period] of receipt of written notice of such material breach from the Institutional Sellers’ Representative and the Management Sellers’ Representative; 2.5.2 all or substantially all of the Business ceasing to be ultimately owned by the Parent (or by any such person as is referred to in paragraph 2.5.3 of this Schedule 5); or 2.5.3 any administrator or receiver being appointed in respect of all or substantially all of the assets of the Parent, or any steps being taken for the winding-up of the Parent, save for a winding-up of the Parent for the purposes of a bona fide reconstruction or intra-group amalgamation in which the person emerging from such reconstruction or amalgamation holds all or substantially all of the assets previously held by the Parent and takes over the obligations of the Parent under this Agreement.

CONDUCT OF BUSINESS DURING EARN-OUT PERIOD. 2.1 The Parent 5.1 From the date of this agreement until 1 July 2016, the Buyer agrees that: (a) it shall (except as expressly provided to the contrary in this agreement or with the prior written consent of the Sellers’ Representative or as set out in the Business Plan) operate the business of the Target Group as a direct or indirect subsidiary of Buyer consistently with the Buyer’s operation of its other businesses and subsidiaries and all of the Buyer’s applicable policies and procedures, including without limitation, its policies relating to ethics, trading in securities, compliance with laws, delegations of and restrictions on the exercise of authority by officers and employees, cash management and accounting matters, pricing, procurement, marketing, product promotion and advertising, labour and employment matters, management of accounts receivable and payable and the establishment of reserves, but the Buyer agrees and acknowledges that, subject to their compliance with the foregoing, the Management Sellers shall be responsible for the day to day management of the Target Group as provided in their respective service agreements and in accordance with the Business Plan; and (b) it shall not and shall procure that during neither any member of the Target Group nor any other member of the Buyer’s Group shall (except as expressly provided to the contrary in this agreement or with the prior written consent of the Sellers’ Representative or as set out in the Business Plan) take any steps in bad faith with the intent of diminishing the Earn-Out Period it shall not, and shall procure that each other Consideration; and (c) any supplies made by the Buyer or a member of the Buyer’s Group Undertaking to the Target Group shall notnot be made on more onerous prices or terms than the prices or terms on which such products are supplied by, or available from, third parties to any member of the Target Group. 5.2 Without prejudice to the generality of paragraph 5.1, from the date of this agreement until 1 July 2016, the Buyer shall procure (so far as it is within its power to do so) that none of the following shall occur in relation to any member of the Target Group without the prior written consent of the Institutional Sellers’ Representative and the Management Sellers’ Representative (each consent not Representative, save where such action is specifically set out or referred to be unreasonably withheld or delayed), take, or omit to take, any action that is intended to reduce, or the principal purpose of which is to reduce, the Actual Gross Contribution and will procure that in the Business will be carried on in a commercially reasonable manner consistent with the manner in which the Business was carried in the three month period prior to the Locked Box Date. 2.2 The Parent agrees that during the Earn-Out Period, unless the Institutional Sellers’ Representative and the Management Sellers’ Representative otherwise consent in writing (each consent not to be unreasonably withheld or delayed), the Parent shallPlan: 2.2.1 procure that each Earn-Out (a) the entering into of any transaction by any member of the Target Group Company shall continue to operate its business other than on normal arm’s length commercial terms; (b) the disposal of any material part of the assets or undertaking of any member of the Target Group otherwise than in the ordinary and proper course of business, and without intent then only at full open-market value on an arm’s length basis, except for dispositions of assets or properties in connection with the replacement thereof; dispositions of assets or properties reasonably determined by the Buyer or any member of the Buyer’s Group to reduce be no longer necessary for the Actual Gross Contributionconduct of the business of the Target Group or that have fully depreciated; the payment of dividends or distributions to the Buyer; and sale and leasebacks of properties or assets that are accounted for as capitalised leases under GAAP; 2.2.2 not take steps, (c) the diversion or procure that steps are taken, to voluntarily wind up any Earn-Out Group Company, or to appoint or voluntarily to seek redirection of the appointment custom of any administrator customer or receiver in respect client or business opportunity of substantially all any member of the assets Target Group away from the relevant member of a Earnthe Target Group to the Buyer’s Group; (d) the development of any business by the Buyer or within the Buyer’s Group that competes with the business of any member of the Target Group as carried on at Completion; (e) all intra-Out group transactions between any member of the Target Group Company, save where and another member of the directors Buyer’s Group shall be undertaken on an arm’s length basis and upon reasonable commercial terms; (f) any capital expenditure by any member of an Earn-Out the Target Group Company acting except in good faith consider it their duty to cause such accordance with the Business Plan; (g) the passing or proposing of any resolution for the winding-up and/or appointment because of any member of the financial Target Group or trading position the presentation of such Earn-Out a petition for an order for the winding up of any member of the Target Group Company and/or where such Earn-Out unless the relevant member of the Target Group Company is insolvent or becomes unable to pay its debts as they fall due or save for and a licensed insolvency practitioner has advised in writing that the purposes relevant member of a bona fide reconstruction or intra-group amalgamationthe Target Group should be wound up; 2.2.3 not, and shall procure that no other Buyer’s Group Undertaking shall, do or say anything which is intended to cause a customer or supplier (h) the removal of any of the Business to acquire comparable products Management Sellers from their employment as an employee of the Target Group and/or the removal of Xxxxxx Xxxxxxxx as a Buyer’s Group Undertaking (other thandirector of any member of the Target Group, save in each case, another Earn-out Group Company); 2.2.4 procure that as between accordance with the Earn-Out Group Company and the Parent and service contracts executed by each of the Buyer Group Undertakings (excluding Management Sellers with the Earn-Out Group Company) expenses are allocated in a commercially reasonable manner; andAimia Foods Limited on the date of this agreement; 2.2.5 procure that no Earn-Out Group Company enters into or agrees to enter into any arrangement or agreement with a Buyer’s Group Undertaking (other than, in each case, with another Earn-Out Group Company) that is intended to reduce the Actual Gross Contribution and (i) adversely impacts subject to paragraph 5.1, any material change in the Actual Gross Contribution scope or nature of the business of any member of the Target Group; (iij) is not on arms’ length terms. 2.3 To except for pledges of shares as may be required by the extent that Buyer’s lenders, the sale or any disposal of the legal or beneficial ownership of any shares other interest in any Earn-Out Group Company or the whole or any substantial part of its share capital (apart form a nominee shareholding), or the Business is transferred allotment or issue of any shares, or the grant of any option or right to a third party (subscribe for shares, or any other than in each case, to another Earn-Out Group Company) (the “Transferred Assets”) and such transfer has an adverse impact on the Actual Gross Contribution then such transfer shall be disregarded for the purposes of the calculation of the Actual Gross Contribution such that in the calculation of the Actual Gross Contribution in accordance with Part B of this Schedule 5: 2.3.1 the relevant Transferred Assets shall be deemed to be included in the definition of the Earn-Out Group for the period from (but excluding) the date on which the Transferred Assets were transferred to (and including) the last day of the Earn-out Period (such period being referred to in this Schedule 5 as the “Stub Period”); and 2.3.2 the actual revenue from sales to third parties less the cost of goods sold alteration or reorganisation in respect of the Transferred Assets for the Earn-Out Period shall instead be calculated as the sum of: (a) the actual revenue in respect of the Transferred Assets (but excluding any sales between the Earn-Out Group Companies) less the third party cost of goods sold in respect of the Transferred Assets for the period from the start of the Earn-Out Period up to (but excluding) the date on which the Transferred Assets were transferred; plus (b) the forecasted revenue for the Stub Period from actual sales of the Transferred Assets (but excluding any sales between the Earn-Out Group Companies) less the forecasted third party cost of goods sold in respect of the Transferred Assets for the Stub Periodits share capital, in each case calculated by reference other than to a member of the Buyer’s Group; (k) the appointment of a receiver or receiver and manager or administrator over the whole or any part of its assets or undertakings, but subject to the most recent forecasted revenue requirements and duties of any director under the provisions of the Insolvency Xxx 0000 provided always that this provision does not impose upon the Buyer or any member of the Buyer’s Group an obligation to financially support any member of the Target Group; and (l) a change of its name or any member of the Target Group being prevented or restricted from actual sales of, being able to use the names “Aimia Foods” and third party costs the goodwill of goods sold in respect of, the Transferred Assets prior to the decision to transfer the Transferred Assetsbusiness otherwise carried on under that name. 2.4 If 5.3 Any dispute, difference controversy or claim arising out of or in connection with this paragraph 5 shall be settled by arbitration pursuant to clause 19 of this agreement. 5.4 Within thirty (30) days after the Earn-Out Group Company enters into an arrangement for the sharing Sellers’ Representative actually becomes aware of profits, assets or management with a person other than an Earn-Out Group Company that is intended any material failure to reduceperform, or the principal purpose of which is to reduce, the Actual Gross Contribution, any adverse impact resulting from such arrangement shall be deemed reversed and adjusted for in calculating the Actual Gross Contribution as if such arrangement had not been entered. 2.5 On the occurrence material breach by Buyer of any of the following events during the Earn-Out Periodits covenants and agreements in paragraph 5.1 or 5.2, the Accelerated EarnSellers’ Representative shall notify the Buyer in writing describing the facts and circumstances of the alleged material breach or non-Out Consideration performance with reasonable particularity and in reasonable detail to the extent at such time known to the Sellers’ Representative, but provided always that, subject to paragraphs 5.6 and 5.7, any delay or failure of the Sellers’ Representative to give notice to the Buyer under this paragraph 5.4 shall immediately become due and payable not affect the Buyer’s liability for a breach of paragraph 5.1 or 5.2. 5.5 If a notice shall be served by the Sellers’ Representative pursuant to paragraph 5.4 above, following receipt of such notice, the Buyer shall have an opportunity to cure the alleged breach or perform the allegedly unperformed covenant or agreement to the Seller: 2.5.1 a material breach of any reasonable satisfaction of the matters set out in paragraphs 2.1, 2.2 or 2.3 that is not remedied within [REDACTED – Time Period] of receipt of written notice of such material breach from the Institutional Sellers’ Representative and the Management Buyer and the Sellers’ Representative shall negotiate in good faith to resolve any disagreement that they may have as to it. If they are able to resolve the matter in a manner which, to the reasonable satisfaction of the Sellers’ Representative;, does not diminish the Earn-Out Consideration, such resolution shall be recorded in writing and signed by the Buyer and the Sellers’ Representative and shall become final and binding on the Buyer and the Sellers in accordance with its terms. 2.5.2 all 5.6 If the Buyer shall not have cured an alleged breach or substantially all performed the allegedly unperformed obligation in respect of any of its covenants and agreements in paragraph 5.1 or 5.2 and/or the Buyer and the Sellers’ Representative shall not otherwise have resolved any disagreement that they may have in respect of it on or before the first to occur of the 180th day after the date on which notice of such breach or non-performance was delivered to Buyer and the End Date then the Sellers’ Representative may institute arbitration proceedings pursuant to paragraph 5.3 above by delivery within twenty (20) Business ceasing Days to the Buyer of a notice (“Notice of Arbitration of Dispute”) pursuant to the provisions of this agreement. The Notice of Arbitration Dispute shall set forth with reasonable particularity and in reasonable detail the claim contemplated to be ultimately owned made by the Parent (Sellers’ Representative in the arbitration proceeding and, with reasonable specificity, the basis for it to the extent at such time known to the Sellers’ Representative. 5.7 No claim alleging any breach by the Buyer of paragraphs 5.1 or by any such person as is referred to in paragraph 2.5.3 5.2 of this Schedule 5); or 2.5.3 any administrator or receiver being appointed may be brought by the Sellers other than pursuant to paragraphs 5.3 and 5.6 of this Schedule. The remedies provided for in respect paragraphs 5.3 and 5.6 of all or substantially all this Schedule shall be the exclusive remedies of the assets of the Parent, or any steps being taken Sellers for the winding-up of the Parent, save for a winding-up of the Parent for the purposes of a bona fide reconstruction or intra-group amalgamation in which the person emerging from such reconstruction or amalgamation holds all or substantially all of the assets previously held breaches by the Parent Buyer of paragraphs 5.1 and takes over the obligations 5.2 of the Parent under this AgreementSchedule.

CONDUCT OF BUSINESS DURING EARN-OUT PERIOD. 2.1 The Parent Buyer agrees that during the Earn-Out Period it shall not, and shall procure that each other Buyer’s Group Undertaking shall not, without the written consent of the Institutional Sellers’ Representative and the Management Sellers’ Representative (each consent not to be unreasonably withheld or delayed), take, or omit to take, any action that is intended to reduce, or the principal purpose of which is to reduce, the Actual Gross Contribution and will procure that the Business will be carried on in a commercially reasonable manner consistent with the manner in which the Business was carried in the three month period prior to the Locked Box Date. 2.2 The Parent Buyer agrees that during the Earn-Out Period, unless the Institutional Sellers’ Representative and the Management Sellers’ Representative otherwise consent in writing (each consent not to be unreasonably withheld or delayed), the Parent Buyer shall: 2.2.1 procure that each Earn-Out Group Company shall continue to operate its business in the ordinary course and without intent to reduce the Actual Gross Contribution; 2.2.2 not take steps, or procure that steps are taken, to voluntarily wind up any Earn-Out Group Company, or to appoint or voluntarily to seek the appointment of any administrator or receiver in respect of substantially all of the assets of a Earn-Out Group Company, save where the directors of an Earn-Out Group Company acting in good faith consider it their duty to cause such winding-up and/or appointment because of the financial or trading position of such Earn-Out Group Company and/or where such Earn-Out Group Company is insolvent or unable to pay its debts as they fall due or save for the purposes of a bona fide reconstruction or intra-group amalgamation; 2.2.3 not, and shall procure that no other Buyer’s Group Undertaking shall, do or say anything which is intended to cause a customer or supplier of the Business to acquire comparable products from a Buyer’s Group Undertaking (other than, in each case, another Earn-out Group Company); 2.2.4 procure that as between the Earn-Out Group Company and the Parent Buyer and each of the Buyer Group Undertakings (excluding the Earn-Out Group Company) expenses are allocated in a commercially reasonable manner; and 2.2.5 procure that no Earn-Out Group Company enters into or agrees to enter into any arrangement or agreement with a Buyer’s Group Undertaking (other than, in each case, with another Earn-Out Group Company) that is intended to reduce the Actual Gross Contribution and (i) adversely impacts the Actual Gross Contribution or (ii) is not on arms’ length terms. 2.3 To the extent that the legal or beneficial ownership of any shares in any Earn-Out Group Company or the whole or any substantial part of the Business is transferred to a third party (other than in each case, to another Earn-Out Group Company) (the “Transferred Assets”) and such transfer has an adverse impact on the Actual Gross Contribution then such transfer shall be disregarded for the purposes of the calculation of the Actual Gross Contribution such that in the calculation of the Actual Gross Contribution in accordance with Part B of this Schedule 5: 2.3.1 the relevant Transferred Assets shall be deemed to be included in the definition of the Earn-Out Group for the period from (but excluding) the date on which the Transferred Assets were transferred to (and including) the last day of the Earn-out Period (such period being referred to in this Schedule 5 as the “Stub Period”); and 2.3.2 the actual revenue from sales to third parties less the cost of goods sold in respect of the Transferred Assets for the Earn-Out Period shall instead be calculated as the sum of: (a) the actual revenue in respect of the Transferred Assets (but excluding any sales between the Earn-Out Group Companies) less the third party cost of goods sold in respect of the Transferred Assets for the period from the start of the Earn-Out Period up to (but excluding) the date on which the Transferred Assets were transferred; plus (b) the forecasted revenue for the Stub Period from actual sales of the Transferred Assets (but excluding any sales between the Earn-Out Group Companies) less the forecasted third party cost of goods sold in respect of the Transferred Assets for the Stub Period, in each case calculated by reference to the most recent forecasted revenue from actual sales of, and third party costs of goods sold in respect of, the Transferred Assets prior to the decision to transfer the Transferred Assets. 2.4 If the Earn-Out Group Company enters into an arrangement for the sharing of profits, assets or management with a person other than an Earn-Out Group Company that is intended to reduce, or the principal purpose of which is to reduce, the Actual Gross Contribution, any adverse impact resulting from such arrangement shall be deemed reversed and adjusted for in calculating the Actual Gross Contribution as if such arrangement had not been entered. 2.5 On the occurrence of any of the following events during the Earn-Out Period, the Accelerated Earn-Out Consideration shall immediately become due and payable by the Buyer to the Seller: 2.5.1 a material breach of any of the matters set out in paragraphs 2.1, 2.2 or 2.3 that is not remedied within [REDACTED – Time Period] of receipt of written notice of such material breach from the Institutional Sellers’ Representative and the Management Sellers’ Representative; 2.5.2 all or substantially all of the Business ceasing to be ultimately owned by the Parent Buyer (or by any such person as is referred to in paragraph 2.5.3 of this Schedule 5); or 2.5.3 any administrator or receiver being appointed in respect of all or substantially all of the assets of the ParentBuyer, or any steps being taken for the winding-up of the ParentBuyer, save for a winding-up of the Parent Buyer for the purposes of a bona fide reconstruction or intra-group amalgamation in which the person emerging from such reconstruction or amalgamation holds all or substantially all of the assets previously held by the Parent Buyer and takes over the obligations of the Parent Buyer under this Agreement.

CONDUCT OF BUSINESS DURING EARN-OUT PERIOD. 2.1 The Parent agrees that during (a) During the Earn-Out Period it shall notPeriod, Groupon and Purchaser shall, and shall procure that cause each other Buyer’s Group Undertaking shall notof their subsidiaries to, without (i) operate the written consent of the Institutional Sellers’ Representative and the Management Sellers’ Representative (each consent not Business in a manner which Groupon in good faith believes to be unreasonably withheld or delayed), take, or omit to take, any action in the best interests of all of its shareholders and that is intended not detrimental to reducethe long-term value of Groupon and its business, or as a whole, and (2) in the principal purpose of which is to reduce, the Actual Gross Contribution and will procure that the Business will be carried on ordinary course in a commercially reasonable manner consistent with the Company’s or its subsidiaries’ past practices or Groupon’s current practices; (ii) maintain separate books and records of the Business, including, but not limited to, separate quarterly profit and loss statements of the Business, so as to make calculation of Revenue, Gross Profit and EBITDA feasible and verifiable and the Quarterly Earn-Out Estimates available; and (iii) not act in an arbitrary or commercially unreasonable manner in which the conduct or operation of the Business was carried if such action would be reasonably likely to materially interfere with the achievement of the Contingent Purchase Price Consideration targets set forth in Section 2 above (which shall include not taking any of the three month period prior following actions without making an equitable adjustment to the Locked Box DateContingent Purchase Price Consideration targets set forth in Section 2 to fully compensate for the adverse effect of such action(s) on the achievement of such targets): (x) changing any of the Company’s revenue recognition or other accounting policies, (y) materially deviating from any of the standard contract terms historically used by the Company or assign, transfer or novate any of the Company’s contracts without counting the revenues associated with such contracts as “Revenues” hereunder, or (z) disposing or agreeing to dispose of, directly or indirectly, all or a material portion of the Company’s or its subsidiaries’ assets). Subject to the prior written approval of Groupon, which approval shall not be unreasonably withheld, Sellers shall have the right to cause the Company or its subsidiaries to enter into Negotiated Discounts. 2.2 The Parent agrees (b) Except as expressly set forth in this Agreement or as required by Groupon’s and Purchaser’s implied contractual covenant of good faith and fair dealing, this Agreement shall impose no restrictions on the operation of the Business by Groupon, Purchaser or the Company following the Closing or on the operations, business or activities of Groupon or Purchaser following the Closing. Without limitation on the foregoing, the parties hereto agree that during the Earn-Out Period, unless the Institutional Sellers’ Representative and the Management Sellers’ Representative otherwise consent in writing (each consent not Groupon or Purchaser shall be permitted to be unreasonably withheld or delayed), the Parent shall: 2.2.1 procure that each Earn-Out Group Company shall continue to operate its business in the ordinary course and without intent to reduce the Actual Gross Contribution; 2.2.2 not take stepsundertake, or procure that steps are taken, to voluntarily wind up any Earn-Out Group Company, or to appoint or voluntarily to seek cause the appointment of any administrator or receiver in respect of substantially all of the assets of a Earn-Out Group Company, save where the directors of an Earn-Out Group Company acting in good faith consider it their duty to cause such winding-up and/or appointment because of the financial or trading position of such Earn-Out Group Company and/or where such Earn-Out Group Company is insolvent or unable to pay its debts as they fall due or save for the purposes of a bona fide reconstruction or intra-group amalgamation; 2.2.3 not, and shall procure that no other Buyer’s Group Undertaking shall, do or say anything which is intended to cause a customer or supplier of the Business to acquire comparable products from a Buyer’s Group Undertaking (other than, in each case, another Earn-out Group Company); 2.2.4 procure that as between the Earn-Out Group Company and the Parent and each of the Buyer Group Undertakings (excluding the Earn-Out Group Company) expenses are allocated in a commercially reasonable manner; and 2.2.5 procure that no Earn-Out Group Company enters into or agrees to enter into any arrangement or agreement with a Buyer’s Group Undertaking (other than, in each case, with another Earn-Out Group Company) that is intended to reduce the Actual Gross Contribution and (i) adversely impacts the Actual Gross Contribution or (ii) is not on arms’ length terms. 2.3 To the extent that the legal or beneficial ownership of any shares in any Earn-Out Group Company or the whole or any substantial part of the Business is transferred its subsidiaries to a third party (other than in each caseundertake, to another Earn-Out Group Company) (the “Transferred Assets”) and such transfer has an adverse impact on the Actual Gross Contribution then such transfer shall be disregarded for the purposes of the calculation of the Actual Gross Contribution such that in the calculation of the Actual Gross Contribution in accordance with Part B of this Schedule 5: 2.3.1 the relevant Transferred Assets shall be deemed to be included in the definition of the Earn-Out Group for the period from (but excluding) the date on which the Transferred Assets were transferred to (and including) the last day of the Earn-out Period (such period being referred to in this Schedule 5 as the “Stub Period”); and 2.3.2 the actual revenue from sales to third parties less the cost of goods sold in respect of the Transferred Assets for the Earn-Out Period shall instead be calculated as the sum of: (a) the actual revenue in respect of the Transferred Assets (but excluding any sales between the Earn-Out Group Companies) less the third party cost of goods sold in respect of the Transferred Assets for the period from the start of the Earn-Out Period up to (but excluding) the date on which the Transferred Assets were transferred; plus (b) the forecasted revenue for the Stub Period from actual sales of the Transferred Assets (but excluding any sales between the Earn-Out Group Companies) less the forecasted third party cost of goods sold in respect of the Transferred Assets for the Stub Period, in each case calculated by reference to the most recent forecasted revenue from actual sales of, and third party costs of goods sold in respect of, the Transferred Assets prior to the decision to transfer the Transferred Assets. 2.4 If the Earn-Out Group Company enters into an arrangement for the sharing of profits, assets or management with a person other than an Earn-Out Group Company that is intended to reduce, or the principal purpose of which is to reduce, the Actual Gross Contribution, any adverse impact resulting from such arrangement shall be deemed reversed and adjusted for in calculating the Actual Gross Contribution as if such arrangement had not been entered. 2.5 On the occurrence of any of the following events during the Earn-Out Period, the Accelerated Earn-Out Consideration shall immediately become due actions: (i) any issuance of any new class or series of capital stock of Groupon or any other securities convertible into equity securities of Groupon in connection with any equity or debt financing of Groupon (and payable by the Buyer any related amendments to the Seller: 2.5.1 a material breach of any of the matters set out in paragraphs 2.1, 2.2 or 2.3 that is not remedied within [REDACTED – Time Period] of receipt of written notice of such material breach from the Institutional Sellers’ Representative and the Management Sellers’ Representative; 2.5.2 all or substantially all of the Business ceasing to be ultimately owned by the Parent (or by any such person as is referred to in paragraph 2.5.3 of this Schedule 5Certificate); or 2.5.3 (ii) effect any administrator Public Offering; (iii) effect any Acquisition or receiver being appointed in respect Asset Transfer; or (iv) any acquisition (whether by merger, consolidation or reorganization or otherwise) of all or substantially all any portion of the assets or equity securities of the Parent, or any steps being taken for the winding-up of the Parent, save for a winding-up of the Parent for the purposes of a bona fide reconstruction or intra-group amalgamation in which the person emerging from such reconstruction or amalgamation holds all or substantially all of the assets previously held by the Parent and takes over the obligations of the Parent under this AgreementPerson.