Common use of Operational Covenants Clause in Contracts

Operational Covenants. Without the prior written consent of Shareholder, which will not be unreasonably withheld, PainCare and its Affiliates shall not, prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Person, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect on the Formula Period Profits; (d) cause the Surviving Corporation to become a party to, amend or terminate any agreement which at the time such agreement is entered into, amended or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (g) cause the Surviving Corporation to undertake any action which at the time of such undertaking could reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be reasonably necessary in light of the Surviving Corporation’s results of operation. The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for any two (2) consecutive calendar quarters are less than $600,000 combined, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PA.

Operational Covenants. Without the prior written consent of Shareholderthe Seller, which will shall not be unreasonably withheld, PainCare and its Affiliates shall not, prior to the conclusion of the third Formula Period: (a) reorganize the Surviving CorporationSubsidiary, whether by integrating or consolidating the business of the Surviving Corporation Subsidiary with other operating units of PainCare or its subsidiaries or affiliates or any other PersonAffiliates, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s Subsidiary human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving CorporationSubsidiary’s results of operation; (c) amend the articles of incorporation or bylaws of the Surviving Corporation Subsidiary in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect on the Formula Period Profits; (d) cause the Surviving Corporation Subsidiary to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; (e) cause the Surviving Corporation Subsidiary to undertake actions outside the ordinary course of its business or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (g) cause the Surviving Corporation to undertake any action which at the time of such undertaking could reasonably be expected to have a material adverse effect on the Formula Period Profits; (f) sell a material portion of the Subsidiary or its assets, merge the Subsidiary with any other entity, sell a controlling interest in the Subsidiary, or make any fundamental change in the business of the Subsidiary unless such action(s) at the time of such undertaking could not reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be or that is reasonably necessary in light of the Surviving Corporation’s results of operation. ; The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for Subsidiary in each of any two (2) consecutive calendar quarters are less than $600,000 combined200,000, or if the Formula Period Profits of the Surviving Corporation Subsidiary in one (1) calendar quarter is less than $250,000100,000. In the event that PainCare defaults in its performance of any of its obligations under this Section and fails to cure such default within thirty (30) days (or such other reasonable period if 30 days is not a sufficient amount of time to cure such default, unless provided that PainCare shall have commenced in each case, good faith and is diligently pursuing its efforts to cure such deficit results default during such 30-day period) of receiving a written notice of default from the failure Seller, PainCare shall be deemed to be in breach of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PAthis Agreement.

Operational Covenants. Without the prior written consent of Shareholder, which will not be unreasonably withheld, PainCare and its Affiliates shall not, and shall not permit the Surviving Corporation to, do any of the following prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personotherwise, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operationProfits; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; provided that this Section 10.9(d) shall not be deemed to create any right to amend or terminate the Management Services Agreement; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a Material Adverse Effect on the Surviving Corporation’s results of operationFormula Period Profits; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (gunless such action(s) cause the Surviving Corporation to undertake any action which at the time of such undertaking could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits except as may be reasonably necessary in light of the Surviving Corporation’s results of operationProfits. The parties Parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 10.9 shall become null and void and be of no further force or effect during any Formula Period if the Formula Period Profits of the Surviving Corporation for in any two (2) consecutive calendar Formula Period quarters falling within such Formula Period are less than Three Hundred Seventy Thousand and No/100 Dollars ($600,000 combined370,000), or if the Formula Period Profits of the Surviving Corporation in any one (1) calendar quarter quarterly period falling within such Formula Period is less than One Hundred Sixty Thousand and No/100 Dollars ($250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PA160,000).

Operational Covenants. Without the prior written consent of Shareholderthe Sellers, which will shall not be unreasonably withheld, PainCare and its Affiliates shall not, prior to the conclusion of the third Formula Period: (a) reorganize the Surviving CorporationSubsidiary, whether by integrating or consolidating the business of the Surviving Corporation Subsidiary with other operating units of PainCare or its subsidiaries or affiliates or any other PersonAffiliates, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s Subsidiary human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving CorporationSubsidiary’s results of operation; (c) amend the articles of incorporation or bylaws of the Surviving Corporation Subsidiary in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect on the Formula Period Profits; (d) cause the Surviving Corporation Subsidiary to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving CorporationCompany’s results of operation; (e) cause the Surviving Corporation Subsidiary to undertake actions outside the ordinary course of its business or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (g) cause the Surviving Corporation to undertake any action which at the time of such undertaking could reasonably be expected to have a material adverse effect on the Formula Period Profits; (f) sell a material portion of the Subsidiary or its assets, merge the Subsidiary with any other entity, sell a controlling interest in the Subsidiary, or make any fundamental change in the business of the Subsidiary unless such action(s) at the time of such undertaking could not reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be or that is reasonably necessary in light of the Surviving CorporationCompany’s results of operation. ; The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for Company in each of any two (2) consecutive calendar quarters during any Formula Period are less than $600,000 combined2,062,500, or if the Formula Period Profits of the Surviving Corporation Company in one (1) calendar quarter during any Formula period is less than $250,000962,500. In the event that PainCare defaults in its performance of any of its obligations under this Section and fails to cure such default within thirty (30) days (or such other reasonable period if 30 days is not a sufficient amount of time to cure such default, unless provided that PainCare shall have commenced in each case, good faith and is diligently pursuing its efforts to cure such deficit results default during such 30-day period) of receiving a written notice of default from the failure Sellers, PainCare shall be deemed to be in breach of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PAthis Agreement.

Operational Covenants. Without the prior written consent of Shareholder, which will not be unreasonably withheld, PainCare and its Affiliates shall not, and shall not permit the Surviving Corporation to, do any of the following prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personotherwise, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operationProfits; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; provided that this Section 10.8(d) shall not be deemed to create any right to amend or terminate the Management Services Agreement; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a Material Adverse Effect on the Surviving Corporation’s results of operationFormula Period Profits; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (gunless such action(s) cause the Surviving Corporation to undertake any action which at the time of such undertaking could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits except as may be reasonably necessary in light of the Surviving Corporation’s results of operationProfits. The parties Parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 10.8 shall become null and void and be of no further force or effect during any Formula Period if the Formula Period Profits of the Surviving Corporation for in any two (2) consecutive calendar Formula Period quarters falling within such Formula Period are less than One Hundred Eighty Five Thousand and No/100 Dollars ($600,000 combined185,000), or if the Formula Period Profits of the Surviving Corporation in any one (1) calendar quarter quarterly period falling within such Formula Period is less than Eighty Thousand and No/100 Dollars ($250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PA80,000).

Operational Covenants. Without the prior written consent of Shareholder, which will not be unreasonably withheldShareholders, PainCare and its Affiliates shall not, and shall not permit the Surviving Corporation to, do any of the following prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personotherwise, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operationProfits; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; provided that this Section 10.9(d) shall not be deemed to create any right to amend or terminate the Management Services Agreement; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a Material Adverse Effect on the Surviving Corporation’s results of operationFormula Period Profits; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (gunless such action(s) cause the Surviving Corporation to undertake any action which at the time of such undertaking could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits. With respect to any action to be taken pursuant to this Section 10.9, PainCare shall have the burden of proving by a preponderance of the evidence (1) the absence of any and all reasonable expectation of Material Adverse Effect on any and all Formula Period Profits except as may be reasonably necessary and (2) the reasonable necessity of any action in the light of the Surviving Corporation’s 's results of operation. The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 10.9 shall become null and void and be of no further force or effect during any Formula Period if the Formula Period Profits of the Surviving Corporation for in any two (2) consecutive calendar Formula Period quarters falling within such Formula Period are less than $600,000 combined500,000, or if the Formula Period Profits of the Surviving Corporation in any one (1) calendar quarter quarterly period falling within such Formula Period is less than $250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PA225,000.

Operational Covenants. Without the prior written consent of Shareholder, which will shall not be unreasonably withheld, PainCare and its Affiliates shall not, prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personaffiliates, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect on the Formula Period Profits; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a material adverse effect on the Surviving Corporation’s results of operationFormula Period Profits; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (gunless such action(s) cause the Surviving Corporation to undertake any action which at the time of such undertaking could not reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be or that is reasonably necessary in light of the Surviving Corporation’s results of operation. ; The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 9.9 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for in each of any two (2) consecutive calendar quarters are less than $600,000 combined150,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PA75,000.

Operational Covenants. Without the prior written consent of the Shareholder, which will shall not be unreasonably withheld, PainCare and its Affiliates shall not, prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personaffiliates, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a Material Adverse Effect on the Surviving Corporation’s results of operationFormula Revenues; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may unless such action(s) at the time of such undertaking could not reasonably be expected to have a Material Adverse Effect on the Formula Revenues or that is reasonably necessary in light of the Surviving Corporation’s results of operation; or (g) cause the Surviving Corporation to undertake any action which at the time of such undertaking could reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be reasonably necessary in light of the Surviving Corporation’s results of operation. The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for in each of any two (2) consecutive calendar quarters are less than $600,000 combined500,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $250,000200,000. In the event that PainCare defaults in its performance of any of its obligations under this Section and fails to cure such default within thirty (30) days (or such other reasonable period if 30 days is not a sufficient amount of time to cure such default, unless provided that PainCare shall have commenced in each case, good faith and is diligently pursuing its efforts to cure such deficit results default during such 30-day period) of receiving a written notice of default from the failure Shareholder, PainCare shall be deemed to be in breach of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PAthis Agreement.

Operational Covenants. Without the prior written consent of Shareholder, which will not be unreasonably withheld, PainCare and its Affiliates shall not, and shall not permit the Surviving Corporation to, do any of the following prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personotherwise, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operationProfits; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; provided that this Section 10.9(d) shall not be deemed to create any right to amend or terminate the Management Services Agreement; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a Material Adverse Effect on the Surviving Corporation’s results of operationFormula Period Profits; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (gunless such action(s) cause the Surviving Corporation to undertake any action which at the time of such undertaking could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits. In the event that any of the foregoing covenants are breached by PainCare and/or the Surviving Corporation and such breach has a Material Adverse Effect on the Formula Period Profits, then the actual Formula Period Profits except shall be increased by the amount by which the Formula Period Profits were materially decreased, as may be reasonably necessary in light a result of such breach by PainCare and/or the Surviving Corporation’s results of operation. The parties Parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 10.9 shall become null and void and be of no further force or effect during any Formula Period if the Formula Period Profits of the Surviving Corporation for in any two (2) consecutive calendar Formula Period quarters falling within such Formula Period are less than a total of Four Hundred Twenty Thousand and No/100 Dollars ($600,000 combined420,000), or if the Formula Period Profits of the Surviving Corporation in any one (1) calendar quarter quarterly period falling within such Formula Period is less than One Hundred Ninety Two Thousand and No/100 Dollars ($250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PA192,000).

Operational Covenants. Without the prior written consent of Shareholder, which will not be unreasonably withheld, PainCare and its Affiliates shall not, and shall not permit the Surviving Corporation to, do any of the following prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personotherwise, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operationProfits; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits;; MIA 302723-6.064049.0034 (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; provided that this Section 10.9(d) shall not be deemed to create any right to amend or terminate the Management Services Agreement; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a Material Adverse Effect on the Surviving Corporation’s results of operationFormula Period Profits; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (gunless such action(s) cause the Surviving Corporation to undertake any action which at the time of such undertaking could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits except as may be reasonably necessary in light of the Surviving Corporation’s results of operationProfits. The parties Parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 10.9 shall become null and void and be of no further force or effect during any Formula Period if the Formula Period Profits of the Surviving Corporation for in any two (2) consecutive calendar Formula Period quarters falling within such Formula Period are less than One Hundred Eighty Five Thousand and No/100 Dollars ($600,000 combined185,000), or if the Formula Period Profits of the Surviving Corporation in any one (1) calendar quarter quarterly period falling within such Formula Period is less than Eighty Thousand and No/100 Dollars ($250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PA80,000).

Operational Covenants. Without the prior written consent of Shareholderthe Member, which will shall not be unreasonably withheld, PainCare and its Affiliates shall not, prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personaffiliates, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a Material Adverse Effect on the Surviving Corporation’s results of operationFormula Revenues; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may unless such action(s) at the time of such undertaking could not reasonably be expected to have a Material Adverse Effect on the Formula Revenues or that is reasonably necessary in light of the Surviving Corporation’s results of operation; or (g) cause the Surviving Corporation to undertake any action which at the time of such undertaking could reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be reasonably necessary in light of the Surviving Corporation’s results of operation. The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for in each of any two (2) consecutive calendar quarters are less than $600,000 combined250,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $250,000100,000. In the event that PainCare defaults in its performance of any of its obligations under this Section and fails to cure such default within thirty (30) days (or such other reasonable period if 30 days is not a sufficient amount of time to cure such default, unless provided that PainCare shall have commenced in each case, good faith and is diligently pursuing its efforts to cure such deficit results default during such 30-day period) of receiving a written notice of default from the failure Member, PainCare shall be deemed to be in breach of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PAthis Agreement.

Operational Covenants. Without the prior written consent of Shareholder, which will not be unreasonably withheld, PainCare and its Affiliates shall not, and shall not permit the Surviving Corporation to, do any of the following prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personotherwise, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operationProfits; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; provided that this Section 10.9(d) shall not be deemed to create any right to amend or terminate the Management Services Agreement; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a Material Adverse Effect on the Surviving Corporation’s results of operationFormula Period Profits; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (gunless such action(s) cause the Surviving Corporation to undertake any action which at the time of such undertaking could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits except as may be reasonably necessary in light of the Surviving Corporation’s results of operationProfits. The parties Parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 10.9 shall become null and void and be of no further force or effect during any Formula Period if the Formula Period Profits of the Surviving Corporation for in any two (2) consecutive calendar Formula Period quarters falling within such Formula Period are less than $600,000 combined250,000 in the aggregate, or if the Formula Period Profits of the Surviving Corporation in any one (1) calendar quarter quarterly period falling within such Formula Period is less than $250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PA75,000.

Operational Covenants. Without the prior written consent of Shareholder, which will not be unreasonably withheldthe Shareholders, PainCare and its Affiliates shall not, and shall not permit the Subsidiary to, do any of the following prior to the conclusion of the third Formula Period: (a) reorganize the Surviving CorporationSubsidiary, whether by integrating or consolidating the business of the Surviving Corporation Subsidiary with other operating units of PainCare or its subsidiaries or affiliates or any other Personotherwise, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving CorporationSubsidiary’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operationProfits; (c) amend the articles of incorporation or bylaws of the Surviving Corporation Subsidiary in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits; (d) cause the Surviving Corporation Subsidiary to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving CorporationSubsidiary’s results of operation; provided that this Section 12.9(d) shall not be deemed to create any right to amend or terminate the Management Services Agreement; (e) cause the Surviving Corporation Subsidiary to undertake actions outside the ordinary course of its business or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (g) cause the Surviving Corporation to undertake any action which at the time of such undertaking could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits except as may be reasonably necessary in light Profits; (f) sell a material portion of the Surviving Corporation’s results Subsidiary or its assets, merge the Subsidiary with any other entity, sell a controlling interest in the Subsidiary, or make any fundamental change in the business of operationthe Subsidiary unless such action(s) at the time of such undertaking could not reasonably be expected to have a Material Adverse Effect on the Formula Period Profits. The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 12.9 shall become null and void and be of no further force or effect during any Formula Period if the Formula Period Profits of the Surviving Corporation for in any two (2) consecutive calendar Formula Period quarters falling within such Formula Period are less than $600,000 combinedfifty percent (50%) of the Earnings Threshold for such quarterly period (i.e., less than fifty percent (50%) of one-quarter of the Earnings Threshold), or if the Formula Period Profits of the Surviving Corporation in any one (1) calendar quarter quarterly period falling within such Formula Period is less than $250,000, unless in each case, such deficit results from the failure twenty-five percent (25%) of the New PA to recover payment from MedicaidEarnings Threshold for such quarterly period (i.e., Medicine, or Blue Cross as a result less than twenty-five percent (25%) of transitioning one-quarter of the Company’s business to the New PAProvider Network Earnings Threshold).

Operational Covenants. Without the prior written consent of the Shareholder, which will shall not be unreasonably withheld, PainCare and its Affiliates shall not, prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personaffiliates, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s 's human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that are reasonably necessary in light of the Surviving Corporation’s 's results of operation; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that are is reasonably necessary in light of the Surviving Corporation’s 's results of operation; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a Material Adverse Effect on the Surviving Corporation’s results of operationFormula Revenues; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may unless such action(s) at the time of such undertaking could not reasonably be expected to have a Material Adverse Effect on the Formula Revenues or that is reasonably necessary in light of the Surviving Corporation’s 's results of operation; or (g) cause the Surviving Corporation to undertake any action which at the time of such undertaking could reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be reasonably necessary in light of the Surviving Corporation’s results of operation. The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for in each of any two (2) consecutive calendar quarters are less than $600,000 combined175,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $250,00080,000. In the event that PainCare defaults in its performance of any of its obligations under this Section and fails to cure such default within thirty (30) days (or such other reasonable period if 30 days is not a sufficient amount of time to cure such default, unless provided that PainCare shall have commenced in each case, good faith and is diligently pursuing its efforts to cure such deficit results default during such 30-day period) of receiving a written notice of default from the failure Shareholder, PainCare shall be deemed to be in breach of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PAthis Agreement.

Operational Covenants. Without the prior written consent of Shareholder, which will shall not be unreasonably withheld, PainCare and its Affiliates shall not, prior to the conclusion of the third Formula PeriodPeriod except in the case of a rescission of this Agreement as provided in Section 11 below: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personaffiliates, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect on the Formula Period Profits; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a material adverse effect on the Surviving Corporation’s results of operationFormula Period Profits; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (gunless such action(s) cause the Surviving Corporation to undertake any action which at the time of such undertaking could not reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be or that is reasonably necessary in light of the Surviving Corporation’s results of operation. ; The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 9.9 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for beginning December 1, 2004 in each of any two (2) consecutive Formula Period calendar quarters are less than $600,000 combined600,000, or if the Formula Period Profits of the Surviving Corporation in one (1) Formula Period calendar quarter is less than $250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PA100,000.

Operational Covenants. Without the prior written consent of ShareholderXx. Xxxxxx Xxxxxxx, which will shall not be unreasonably withheld, PainCare and its Affiliates Buyer shall not, prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare Buyer or its subsidiaries or affiliates or any other Personaffiliates, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (b) breach, or cause the Surviving Corporation to breach, the Employment Agreements with Xx. Xxxxxx Xxxxxxx; (c) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s 's human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that are reasonably necessary in light of the Surviving Corporation’s 's results of operation; (cd) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (de) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that are is reasonably necessary in light of the Surviving Corporation’s 's results of operation; (ef) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a Material Adverse Effect on the Surviving Corporation’s results of operationFormula Revenues; (fg) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may unless such action(s) at the time of such undertaking could not reasonably be expected to have a Material Adverse Effect on the Formula Revenues or that is reasonably necessary in light of the Surviving Corporation’s 's results of operation; or (g) cause the Surviving Corporation to undertake any action which at the time of such undertaking could reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be reasonably necessary in light of the Surviving Corporation’s results of operation. The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for in each of any two (2) consecutive calendar quarters are less than $600,000 combined120,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $250,00080,000. In the event that Buyer defaults in its performance of any of its obligations under this Section 2.10 and fails to cure such default within thirty (30) days (or such other reasonable period if 30 days is not a sufficient amount of time to cure such default, unless provided that Buyer shall have commenced in each case, good faith and is diligently pursuing its efforts to cure such deficit results default during such 30-day period) of receiving a written notice of default from the failure Stockholder, Buyer shall be deemed to be in breach of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PAthis Agreement.

Operational Covenants. Without the prior written consent of Shareholder, which will shall not be unreasonably withheld, PainCare and its Affiliates shall not, prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personaffiliates, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect on the Formula Period Profits; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a material adverse effect on the Surviving Corporation’s results of operationFormula Period Profits; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (gunless such action(s) cause the Surviving Corporation to undertake any action which at the time of such undertaking could not reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be or that is reasonably necessary in light of the Surviving Corporation’s results of operation. ; The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 9.9 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for in each of any two (2) consecutive calendar quarters are less than $600,000 combined600,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PA100,000.

Operational Covenants. Without the prior written consent of Shareholder, which will shall not be unreasonably withheld, PainCare and its Affiliates shall not, prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personaffiliates, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s 's human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s 's results of operation; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect on the Formula Period Profits; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s 's results of operation; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a material adverse effect on the Surviving Corporation’s results of operationFormula Period Profits; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (gunless such action(s) cause the Surviving Corporation to undertake any action which at the time of such undertaking could not reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be or that is reasonably necessary in light of the Surviving Corporation’s 's results of operation. ; The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 9.9 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for in each of any two (2) consecutive calendar quarters are less than $600,000 combined175,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine, or Blue Cross as a result of transitioning the Company’s business to the New PA80,000.

Operational Covenants. Without the prior written consent of ShareholderShareholders, which will shall not be unreasonably withheld, PainCare and its Affiliates shall not, prior to the conclusion of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating or consolidating the business of the Surviving Corporation with other operating units of PainCare or its subsidiaries or affiliates or any other Personaffiliates, except in the case that at the time of such integration or consolidation such transaction could not reasonably be expected to have a material adverse effect on the Formula Period Profits; (b) effect any reassignment, reprioritization, reallocation, restructuring, or reduction of the Surviving Corporation’s human or other resources, their research and development initiatives, or their marketing programs, except in a manner that at the time of such event could not reasonably be expected to have a material adverse effect on the Formula Period Profits or that are reasonably necessary in light of the Surviving Corporation’s results of operation; (c) amend the articles of incorporation or bylaws of the Surviving Corporation in any manner that at the time of such amendment could reasonably be expected to have a material adverse effect on the Formula Period Profits; (d) cause the Surviving Corporation to become a party to, amend to or terminate any agreement which at the time such agreement is entered into, amended into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that are is reasonably necessary in light of the Surviving Corporation’s results of operation; (e) cause the Surviving Corporation to undertake actions outside the ordinary course of its business or that are which at the time of such undertaking could reasonably necessary in light of be expected to have a material adverse effect on the Surviving Corporation’s results of operationFormula Period Profits; (f) sell a material portion of the Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporation, or make any fundamental change in the business of the Surviving Corporation except as may be reasonably necessary in light of the Surviving Corporation’s results of operation; or (gunless such action(s) cause the Surviving Corporation to undertake any action which at the time of such undertaking could not reasonably be expected to have a material adverse effect on the Formula Period Profits except as may be or that is reasonably necessary in light of the Surviving Corporation’s results of operation; The Acquiring Companies will cooperate with Shareholders in implementing a business plan and effecting transactions reasonably necessary to maintain or improve Formula Period Profits. The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.8 9.9 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation for any two (2i) consecutive calendar quarters are less than $600,000 combined, or if the Formula Period Profits of the Surviving Corporation in one any three (13) consecutive Formula Period calendar quarter is quarters (taken in the aggregate) are less than $250,000, unless in each case, such deficit results from the failure of the New PA to recover payment from Medicaid, Medicine1,200,000, or Blue Cross in any two (2) consecutive Formula Period calendar quarters less than $300,000, or (ii) the Management Fee (as a result described in the Management Agreement of transitioning the Company’s business to the New PAeven date herewith) is not paid within 30 days of its due date.