Operation of Surviving Corporation. The Company acknowledges that upon the effectiveness of the Merger, and the material compliance by Parent and Acquisition Corp. with their respective duties and obligations hereunder, Parent shall have the absolute and unqualified right to deal with the assets and business of the Surviving Corporation as its own property without limitation on the disposition or use of such assets or the conduct of such business.
Operation of Surviving Corporation. (a) Parent confirms that it has no intention to merge or otherwise consolidate the Surviving Corporation with Parent, although Parent may transfer businesses of Parent or its affiliates (including by way of merger or other consolidation) with Surviving Corporation to be operated by Surviving Corporation and does envision following the Effective Time to transfer the operations of the Parent's subsidiary Fluence Technology, Incorporated. to the Surviving Corporation.
(b) Surviving Corporation will, during the one year period following the Effective Time (the "Post Closing Period"), maintain separate ------------------- company accounts in accordance with GAAP and the Board of Surviving Corporation will be responsible for the day to day management of the Surviving Corporation (including the setting of headcount levels and capital expenditures).
(c) Provided that the revenues of the Surviving Corporation, for each fiscal quarter, meet or exceed the target revenues for such quarter set forth below (each a "Quarterly Target"), Parent agrees that it shall not, ---------------- without unanimous approval of the Board of Directors of Surviving Corporation, make any material reduction in the overall headcount and/or compensation levels for employees of Surviving Corporation (employed by Company as of the Effective Time). Should the target revenues of Surviving Corporation be less than any given Quarterly Target, Surviving Corporation shall, if required by Parent, take steps to correct such deficiency, including (if required by Parent) through reduction of headcount and/or compensation levels. Parent and Surviving Corporation will, during the Post Closing Period, continue to offer benefits to the employees of Surviving Corporation (employed by Company as of the Effective Time) which are substantially equivalent overall to those offered by Company as of the Effective Time. Fiscal Quarter Quarterly Target ($ millions) -------------- ----------------------------- Third Quarter 2001 11.2 Fourth Quarter 2001 14.4 First Quarter 2002 15.2 Second Quarter 2002 15.2 Should there be a transfer of any operations by Parent or its subsidiaries, after the Effective Time, to Surviving Corporation, Parent and Surviving Company will seek to agree upon appropriate adjustments to the Quarterly Targets.
(d) It is the current intent of Parent and Company that the existing headoffice of Company at Gemini Drive, Beaverton, Oregon will be maintained as the headoffice of Surviving Corporation...
Operation of Surviving Corporation. The Company acknowledges that upon effectiveness of the Merger, and the material compliance by Parent and Acquisition Corp. with their respective duties and obligations hereunder, the Surviving Corporation shall become a wholly-owned subsidiary of Parent.
Operation of Surviving Corporation. (i) Parent shall manage and operate the Surviving Corporation generally in accordance with the business principles and practices employed in the management and operation of Parent's business, with a view to the achievement of reasonable growth objectives in both sales and earnings; provided, however, that Parent shall only be obligated to -------- ------- operate the Surviving Corporation in a manner which is consistent with Parent's corporate policy considered on a consolidated basis, and in a manner consistent with Parent's consolidated strategy, policies, practices and resources. Parent shall not have any liability to the Shareholders for any decisions made with respect to the operation of the Surviving Corporation or the management of its affairs, except where Parent shall have acted in bad faith. By way of example and not by way of limitation, the parties agree that Parent shall be permitted to decline to pursue opportunities for growth of the business of the Surviving Corporation if they do not, in the sole judgment of Parent, appear more desirable, from a consolidated point of view, than other opportunities which may be available to Parent for the utilization of Parent's financial resources. Notwithstanding anything herein to the contrary, nothing in this Agreement shall require Parent to contribute capital to the Surviving Corporation or to select investments on the part of the Surviving Corporation for financial support by Parent.
(ii) The board of directors of the Surviving Corporation shall at all times consist of directors a majority of whom have been appointed by Parent.
(iii) Parent may cause the Surviving Corporation to reimburse Parent and/or one or more of Parent's subsidiaries for the direct additional costs incurred by Parent or such other subsidiaries for services rendered directly to the Surviving Corporation, provided that -------- the costs so reimbursed shall (A) be reasonable in amount in relation to the Surviving Corporation's needs, (B) be for services reasonably required by the Surviving Corporation and actually furnished by Parent and/or one of Parent's subsidiaries, and (C) not exceed the cost which would have been incurred by the Surviving Corporation if it had obtained such services from qualified and reputable external contractors.
(iv) Parent shall provide the Surviving Corporation with access to capital obtained and/or borrowings made by Parent, provided that the -------- actual costs associated with such capital and/or b...
Operation of Surviving Corporation. 52 9.5 Relocation..........................................................................52 9.6
Operation of Surviving Corporation. The parties acknowledge that following the Effective Time, JMAR shall have complete operational control over the Surviving Corporation, including the right to operate the Surviving Corporation on a cash neutral basis with its only obligation to provide to the Surviving Corporation funding of Two Hundred Fifty Thousand Dollars ($250,000) during each of the third and fourth calendar quarters of 2001 and Three Hundred Fifty Thousand Dollars ($350,000) during each of the first and second calendar quarters of 2002, with no obligation during such periods to provide funding in excess of such amounts or in any amount after the second calendar quarter of 2002. Notwithstanding the foregoing, JMAR shall have the right, in its sole discretion, to accelerate all or a portion of the funding requirements set forth in the immediately preceding sentence; provided, however, such acceleration shall not modify or increase JMAR's aggregate obligation to provide (a) no more than Two Hundred Fifty Thousand Dollars ($250,000) during the third calendar quarter of 2001, (b) no more than an aggregate of Five Hundred Thousand Dollars ($500,000) during the third and fourth calendar quarters of 2001, (c) no more than an aggregate of Eight Hundred Fifty Thousand Dollars ($850,000) during the third and fourth calendar quarters of 2001 and the first calendar quarter of 2002, and no more than an aggregate One Million Two Hundred Thousand Dollars ($1,200,000) during all four calendar quarters.
Operation of Surviving Corporation. Upon the effectiveness of the Merger, and the material compliance by the parties hereto with their respective duties and obligations hereunder, the Contributing Stockholders shall own no less than 90% of the Surviving Corporation.
Operation of Surviving Corporation. During the Earnout Period, Parent shall use its Best Efforts to operate the Surviving Corporation, or cause W02-SD:6AFP1\51393538 -64- Agreement and Plan of Merger 09EY-117690 PAGE the Surviving Corporation to be operated, in conformity with sound business practices. Parent agrees that during the Earnout Period, taking into account the goal of the Shareholders to earn the maximum Performance Consideration available under Article II, it shall make all business decisions which affect the financial or operating results of the Surviving Corporation in good faith, and shall not take any action with the purpose of distorting the operational results of the Surviving Corporation in a manner adverse to the Shareholders. Any dispute regarding compliance by Parent with the terms and provisions of this Section 8.3, or the remedy or Losses as a result thereof, shall be submitted to dispute resolution under Section 7.6 (as if the dispute had arisen under Section 7.4(a)(1)).
Operation of Surviving Corporation. StationDigital acknowledges that upon the effectiveness of the Merger, and the material compliance by ADI and StationDigital with their respective duties and obligations hereunder, ADI shall have the absolute and unqualified right to deal with the assets and business of the Surviving Corporation as its own property without limitation on the disposition or use of such assets or the conduct of such business.
Operation of Surviving Corporation. Good Earth acknowledges that upon the effectiveness of the Merger, and the material compliance by Numbeer and Acquisition with their respective duties and obligations hereunder, Numbeer shall have the absolute and unqualified right to deal with the assets and business of the Surviving Corporation as its own property without limitation on the disposition or use of such assets or the conduct of such business.
