Earn-Out Covenants. The following provisions shall apply during the period from the Closing through achievement of all Earn-Out Milestones to ensure none of the following has a material adverse impact on the operations of the Group Companies and their ability to achieve any Earn-Out Milestones:
(i) Parent Group agrees that no later than 60 days from the date hereof it shall assist and enable the Company or an applicable Subsidiary thereof to enter into a commercial agreement with Starlink and VenueNext, and shall take reasonable efforts to cause the Company and its Subsidiaries to integrate their products;
(ii) Parent Group agrees to operate the Group Companies following the Closing in the ordinary course (in good faith) and with no intent to frustrate the ability of the Participating Equity Holders to receive Earn-Out Consideration. Without derogating from the generality of the foregoing, in the event that during the period from the Closing through Earn-Out Qualifying Date, Parent Group (or its Affiliates, as applicable) shall:
(A) sell the Company, the Group Companies’ business or any material part of the business of the Group Companies to any third party,
(B) shut down a material portion of the business of the Group Companies (as carried out on the Closing Date), [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(C) implement a significant change (including by way of terminating (other than for cause) or adversely amending engagement terms with key managerial personnel or significantly reducing working capital available), which is reasonably likely to have a material adverse effect on the Group Companies’ business and the ability to reach any of the Earn-Out Milestones,
(D) directly or indirectly, take any action, or cause or permit anything to be done, that is reasonably likely to cause or directly result in the termination or material breach of any agreements with Starlink and VenueNext European by the Company or its Subsidiary (which is a party to such agreements), or
(E) be subject to any event of or any proceeding under any bankruptcy or insolvency law or laws relating to the relief of debtors, including, without limitation, any voluntary or involuntary bankruptcy, insolvency, receivership or other similar legal proceeding or arrangement involving the Parent, Parent Sub or their respective c...
Earn-Out Covenants. (a) Conduct of the Business During Earn-Out Period. From the date hereof until the earlier of (x) payment of Earn-Out Payments in an amount equal to the Earn-Out Cap and (y) December 31, 2023 (such period, the “Earn-Out Period”), Parent covenants and agrees as follows:
(i) Parent will, and will cause the Surviving Entity to, use commercially reasonable efforts to support the business and interest of the operations of the Surviving Entity and its Subsidiaries and to act in good faith in connection with its ownership and operation of the Surviving Entity and neither Parent nor any of its Affiliates (including after the Effective Time, the Surviving Entity and its Subsidiaries) shall take any action intended to interfere with the ability of the Surviving Entity and its Subsidiaries to achieve the 2022 Earn-Out Payment and 2000 Xxxx-Xxx Payment in an aggregate amount equal to the Earn-Out Cap.
(ii) Parent shall, and shall cause the Surviving Entity and its Subsidiaries to, cause the business activities and operations of the Surviving Entity and its Subsidiaries to be accounted for separately from the Parent’s and its other Subsidiaries’ and to maintain such books 88758860_15 and records with respect thereto as shall be necessary to carry out the provisions of this Agreement.
(iii) Parent agrees to provide the Surviving Entity and its Subsidiaries access to funding, personnel, compensation for employees, and other working capital in accordance with the budget proposed by the chief executive officer or equivalent of the Company and approved by the board of directors of Parent.
(iv) Except as required by GAAP, Parent shall not, and cause the Surviving Entity and its Subsidiaries not to, make any change in any method of accounting or accounting practice or policy of the Company without the consent of the Securityholders’ Representative.
(v) Parent agrees to not change the nature of the business conducted by the Company in a manner materially different than the business conducted by the Company and its Subsidiaries prior to the date of this Agreement which change would reasonably be expected to interfere with the Unitholders’ ability to achieve the 2000 Xxxx-Xxx Payment or the 2023 Earn-Out Payment.
(vi) Parent covenants and agrees not to enter into, or permit the Surviving Entity to enter into, any Contract that expressly restricts payment of the Earn- Out Payments.
Earn-Out Covenants. During the Earn-Out Period and for so long thereafter as any Earn-Out Payments are in dispute, the following shall apply:
Earn-Out Covenants. From and after the Closing and continuing until the final determination of the Achieved Legacy Earn-Out Value and Achieved GammaTile Earn-Out Value for the Final Period Expiration Date, Buyer will (i) maintain books and records as reasonably necessary for the calculation of the Achieved Legacy Earn-Out Value and Achieved GammaTile Earn-Out Value and (ii) refrain from taking any action in bad faith with the primary intent of impeding payment of any Achieved Earn-Out Payment following the Closing; provided, that subject solely to the foregoing, the Parties understand and agree that Buyer will have full management and operational authority to direct its business (including all business related to the GammaTile Product and Legacy Product) following the Closing with respect to all matters, may at any time change the operations of its business and may take any and all other actions (or fail to take any action) that Buyer, in its judgment, shall deem advisable or in its best interest.
Earn-Out Covenants. During the Earn-Out Period, Purchaser shall, and shall cause the Company to, use commercially-reasonable efforts to act in good faith and in the spirit of fair dealing with respect to the provisions of this Section 2.8 and shall not, and shall cause the Company not to, intentionally take any action in bad faith which has the primary purpose of reducing the earning or payment of the Earn-Out Payment (if any) (the “Earn-Out Covenants”). Except for the express Earn-Out Covenants, none of Purchaser, any of its Affiliates, the Company or any of their respective Representatives shall have any obligation, express or implied, to operate the Company in any particular manner so as to meet the requirements for the Earn-Out Payment as set forth herein.
Earn-Out Covenants. Other than pursuant to the express terms of the Transaction Documents, from the Closing until the earlier of (i) the end of the 2017 Measurement Year and (ii) the issuance of the Earn Out Shares in accordance with Section 2.6(g) (the “Earn Out Period”), the Buyer (A) shall not, and shall cause each of its controlled Affiliates (including the Hostess Entities) to not, without the prior written consent of the Sellers’ Representative or Hostess CDM Co-Invest, as applicable, take any actions that have the primary purpose of avoiding, reducing or preventing the achievement or attainment of the 0000 XXXXXX Xxxxxx, the 2017 Catch Up EBITDA Target or the 2017 EBITDA Target, (B) shall, and shall cause each of its controlled Affiliates (including the Hostess Entities), to conduct the business of the Hostess Entities in good faith, and (C) shall reserve and keep available for issuance such number of shares of Buyer Class A Common Stock and Buyer Class B Common Stock as shall from time to time be sufficient to permit the issuance of all Earn Our Shares and shall take all action required to increase the authorized number of shares of Buyer Class A Common Stock or Buyer Class B Common Stock, as applicable, if at any time there shall be insufficient authorized and unissued shares to permit such reservation.
Earn-Out Covenants. During the Earn-Out Period, Purchaser shall, and shall cause its Subsidiaries (including the Company and its Subsidiaries) to:
(i) use commercially reasonable efforts to satisfy the Earn-Out Conditions;
(ii) refrain from taking or omitting to take any action, the primary purpose of which, is to avoid satisfying the Earn-Out Conditions or making the Earn-Out Payment;
(iii) use commercially reasonable efforts to ensure that Company and its Subsidiaries have an amount of working capital that is sufficient to operate in a manner consistent with ordinary course and currently planned future operations as of the date of this Agreement; and
(iv) not offer any discounts, price reductions, credits or other similar incentives (unless applicable credits are included in the Revenue calculation for the Earn-Out Period) in respect of the products and services of the Company and its Subsidiaries, other than in the ordinary course of business or consistent with past practices applicable to the Company and its Subsidiaries;
Earn-Out Covenants. From the Closing Date until the end of the Second Earn-Out Period (or, if the Earn-Out Payment is earned in the First Earn-Out Period, the end of the First Earn-Out Period):
(i) Purchaser shall keep adequate books and records to the extent necessary to enable the Seller Representative to fully review any Earn-out Statement;
(ii) within 30 days after the end of each quarter of the First Earn-out Period and the Second Earn-Out Period (as applicable), Purchaser shall prepare and deliver to the Seller Representative a calculation of CP Advisory Revenue for such quarter;
(iii) Purchaser shall not, and shall not permit any of its Subsidiaries to, take any action for the primary purpose or intent of adversely affecting, , in any material respect, the opportunity of Sellers to receive the Earn-Out Payment; and
(iv) Purchaser will operate the business of the Companies and their Subsidiaries in good faith and consistent with Purchaser’s business practices.
Earn-Out Covenants. (i) During the period beginning on the Closing Date and ending on the Third Earn-Out Payment Date (the “Earn-Out Period”), (A) the Company will remain an independent entity unless otherwise mutually agreed by Buyer and the Shareholders’ Representative, (B) Parent and Buyer shall cause the Company to track separately all financial information as is necessary to effectively make a determination of the Earn-Out Payments under this Section 1.5 and each of the components that goes into the determination of the Earn-Out Payments, and (C) the Company shall, and Parent and Buyer shall cause the Company to, prepare Unaudited Financials that are separate from and not consolidated with the financials of Parent and/or Buyer. Notwithstanding the foregoing, after the Closing, the Company’s operations may be moved to, and conducted at, Parent’s existing facilities located at 0000 Xxxxxxx Xxxxxxx XX, Xxxxxxxxxxx, XX (the “Parent Facilities”); provided, however, no portion of the cost of any leasehold improvements associated with the Company’s relocation to the Parent Facilities will be charged to the Company; provided, further, no adjustments to the calculation of the Earn-Out Payments shall be made to account for any distractions and other reductions in the Company’s productivity caused by its relocation to the Parent Facilities.
(ii) Parent agrees that during the Earn-Out Period it will use commercially reasonable efforts to (A) provide to the facilities operated by the Company after the Closing (including, without limitation, the Parent Facilities in the event the Company’s operations are moved to such facilities after the Closing) the same general level of support that it provides to its other laboratory facilities and (B) refrain from making any material changes in the operation of such facilities.
Earn-Out Covenants. Except as Purchaser and Seller may otherwise agree in writing, from and after the Closing Date and until the end of the 2023 fiscal year of the Company Group, pursuant to Section 3.5 of the Agreement, the Company Group shall, and Purchaser shall cause the Company Group to:
