Common use of Post-Closing Operation of the Business Clause in Contracts

Post-Closing Operation of the Business. (i) Subject to the terms and conditions of this Agreement, subsequent to the Closing, Buyer will have the power and right to control the business and operations of Buyer (including the Company) in its discretion; provided, however, that Buyer shall (A) maintain the records of the Company and Buyer in a manner permitting accurate preparation of financial statements consistent with this Section 1.04 and permitting the good faith determination of the Contingent Payment as provided in this Section 1.04, (B) operate the business of the Company in good faith and in a manner reasonably intended for the Sellers to receive the Maximum Number of Contingent Shares and the Maximum Amount of Contingent Cash; provided that Buyer and its Affiliates shall not be required to take any action intended to benefit the Company and adversely impact the business of Buyer or its other Affiliates, and (C) not take any action that is primarily intended to adversely affect the ability of the Sellers to earn the Contingent Consideration. (ii) Prior to the payment of the Contingent Payment, if any, Buyer shall deliver to the Sellers’ Representative, within 45 days after the end of each quarter during the Earnout Period (i.e., each of the four, separate three-month periods during the Earnout Period), a financial report setting forth Buyer’s calculation of EBITDA for such quarter in reasonable detail, and Buyer agrees to promptly provide such supporting documentation as the Sellers’ Representative may reasonably request. The Founders, the Company, Buyer and the Sellers’ Representative agree to keep each other informed on a timely basis of any Adjustment Event or potential Adjustment Event, and, if requested by the Founders or Buyer, shall meet on a regular basis to discuss such actual or prospective Adjustment Events. (iii) Nothing in this Agreement shall be interpreted as a restriction or limitation on Buyer’s right or ability to (w) restructure or materially change the Company, its operations or its ongoing business practices (as conducted prior to Closing consistent with past practice) following the Closing, (x) merge or consolidate the Company or its operations into, or otherwise transfer or assign the Company or its operations to Buyer or any of Buyer’s Affiliates (an “Affiliate Business”), (y) acquire (or to cause the Company to acquire) by purchase, exchange, merger, asset sale, or otherwise, any other Person, whether or not engaged in a business similar or related to the Company (an “Acquired Business”), (z) to transfer or assign to the Company any of the business, operations or assets of Buyer or its Affiliates (“Company Transfers”). The Sellers shall not have any rights or interests in or relating to any such Affiliate Business, Acquired Business, or Company Transfers. In the event of an Adjustment Event, other than an Adjustment Event required by a change in Law following the date of this Agreement, for purposes of the calculation of the Contingent Payment deliverable hereunder, Buyer and the Sellers’ Representative shall agree on equitable adjustments in good faith to EBITDA during the Earnout Period and, as applicable, LTM EBITDA, to exclude any financial impact (whether positive or negative) of such Adjustment Event on the operations or financial results of the Company following such transaction.

Post-Closing Operation of the Business. (i) Subject Notwithstanding anything to the contrary in this Agreement or otherwise, each of Buyer and Seller acknowledges, understands and agrees that: (a) the terms and conditions of this Section 2.10 and the possibility of receiving an Earnout Amount comprises a material inducement for Seller to enter into this Agreement, subsequent to the Closing, ; (b) Buyer will and its Affiliates shall have the power and right to control operate their businesses, including the business and operations Business, in the sole discretion of Buyer and its Affiliates and make all decisions with respect to Buyer and its Affiliates (including the CompanyBusiness) in their sole discretion, including with respect to the offering and pricing of any Business Products; provided, that, Buyer shall maintain separate books and records of the Business to the extent necessary to fulfill Buyer’s obligations with respect to this Section 2.10; (c) Buyer and its discretionAffiliates have no obligation to operate the Business in order to achieve any Earnout Amount; (d) the Total Store Count and the Total Revenue targets contemplated herein are speculative and are subject to numerous factors, including factors outside the control of Buyer and its Affiliates; (e) there is no assurance that Seller will receive any Earnout Amount and neither Buyer nor its Affiliates has promised or projected payment of any Earnout Amount; (f) neither Buyer nor its Affiliates owe a fiduciary or express or implied duty to Seller as a result of the transactions contemplated by this Section 2.10; (g) the contingent right of Seller to receive any Earnout Amount is not an investment in Buyer or its Affiliates and such contingent right shall not entitle Seller to any rights as equityholders of Buyer or its Affiliates, are not transferable and shall not be represented by any form of certificate or other instrument; and (h) the parties hereto solely intend the express provisions of this Agreement to govern all of their rights and obligations, if any, with respect to the Total Store Count, Total Revenue and Earnout Amounts contemplated pursuant to this Section 2.10; provided, however, that that, (i) Buyer shall (A) maintain the records of the Company and Buyer in a manner permitting accurate preparation of financial statements consistent with this Section 1.04 and permitting the good faith determination of the Contingent Payment as provided in this Section 1.04, (B) operate the business of the Company in good faith and in a manner reasonably intended for the Sellers to receive the Maximum Number of Contingent Shares and the Maximum Amount of Contingent Cash; provided that Buyer and its Affiliates shall not be required to take any action intended to benefit the Company and adversely impact the business of Buyer or its other Affiliates, and (C) not take any action, or refrain from taking any action that is primarily intended with the primary purpose of causing an Earnout Amount to adversely affect the ability of the Sellers to earn the Contingent Consideration. not be payable hereunder or (ii) Prior to the payment sell, exchange or transfer all or substantially all of the Contingent Payment, if any, Buyer shall deliver Purchased Assets to the Sellers’ Representative, within 45 days after the end of each quarter during the Earnout Period (i.e., each of the four, separate three-month periods during the Earnout Period), a financial report setting forth Buyer’s calculation of EBITDA for such quarter in reasonable detail, and Buyer agrees to promptly provide such supporting documentation as the Sellers’ Representative may reasonably request. The Founders, the Company, Buyer and the Sellers’ Representative agree to keep each other informed on a timely basis of any Adjustment Event or potential Adjustment Event, and, if requested by the Founders or Buyer, shall meet on a regular basis to discuss such actual or prospective Adjustment Events. (iii) Nothing in this Agreement shall be interpreted as a restriction or limitation on Buyer’s right or ability to (w) restructure or materially change the Company, its operations or its ongoing business practices (as conducted prior to Closing consistent with past practice) following the Closing, (x) merge or consolidate the Company or its operations into, or otherwise transfer or assign the Company or its operations to Buyer or any of Buyer’s Affiliates (an “Affiliate Business”), (y) acquire (or to cause the Company to acquire) by purchase, exchange, merger, asset sale, or otherwise, any other Person, whether or not engaged third party in a business similar single transaction or series of related to transactions unless such third party expressly assumes the Company (an “Acquired Business”), (z) to transfer or assign to the Company any of the business, operations or assets obligations of Buyer or its Affiliates (“Company Transfers”). The Sellers shall not have any rights or interests in or relating to any such Affiliate Business, Acquired Business, or Company Transfers. In the event of an Adjustment Event, other than an Adjustment Event required by a change in Law following the date of under this Agreement, for purposes of the calculation of the Contingent Payment deliverable hereunder, Buyer and the Sellers’ Representative shall agree on equitable adjustments in good faith to EBITDA during the Earnout Period and, as applicable, LTM EBITDA, to exclude any financial impact (whether positive or negative) of such Adjustment Event on the operations or financial results of the Company following such transactionSection 2.10.

Post-Closing Operation of the Business. During the period from the Closing Date to March 30, 2013 (i) Subject the “Second Earnout Payment Period”), Purchaser commits to do the terms following (collectively, the “Operating Commitments”): 9.4.1. Operate the Assets and conditions of this Agreement, subsequent to the Closing, Buyer will have Business as a separate profit center and shall track the power and right to control the business and operations of Buyer (including the Company) in its discretion; provided, however, that Buyer shall (A) maintain the records results of the Company and Buyer Business separately from its other operations for the periods hereinafter described; 9.4.2. Operate the customer-facing parts of the Business in a manner permitting accurate preparation of financial statements consistent with this Section 1.04 and permitting substantially similar in all material respects to the good faith determination customer-facing operations of the Contingent Payment as provided in this Section 1.04Business prior to the Closing Date, except that Sellers acknowledge that, under Purchaser’s ownership, the Business will, among other things, (Ba) operate use the business “shared services” organization of the Company in good faith and in a manner reasonably intended Purchaser for the Sellers services it renders, including, without limitation, services related to receive the Maximum Number following: human resources, accounting and finance (including, without limitation, purchasing, budgeting, bonding, accounting and project pro forma and pricing approval), legal and contract management, fleet, insurance, facilities, information technology and communications, insurance and travel, (b) be subject to certain senior leadership reporting responsibilities common to Purchaser and other business units of Contingent Shares and the Maximum Amount of Contingent Cash; provided that Buyer and its Affiliates shall not be required to take any action intended to benefit the Company and adversely impact the business of Buyer or its other Purchaser’s Affiliates, and (Cc) be subject to the competitive concerns of other Affiliates of Purchaser and, as such, the Business will not take any action be able to bind itself to engagements without first complying with the contracting policies and approval procedures of Purchaser’s parent, including, as applicable, consultation with executive management of such parent so that is primarily intended to adversely affect the ability such executive management (with support from officers of the Sellers Business and other business units) can properly manage any resulting or possible conflicts with other business units of Purchaser’s parent, or customers, competitors and/or suppliers of such other business units; 9.4.3. Not divert to earn the Contingent Consideration. (ii) Prior to the payment Purchaser or any Affiliate of Purchaser any existing customer or customer accounts of the Contingent PaymentBusiness, if anyor accounts generated by the Business in the normal course after the Closing, Buyer shall deliver without adequate financial provision, reasonably acceptable to the Sellers’ Representative, within 45 days after being made to appropriately credit the end of each quarter during Business as if it had performed the Earnout Period (i.e., each of the four, separate three-month periods during the Earnout Period), a financial report setting forth Buyer’s calculation of EBITDA for such quarter in reasonable detail, and Buyer agrees to promptly provide such supporting documentation as the Sellers’ Representative may reasonably request. The Founders, the Company, Buyer and the Sellers’ Representative agree to keep each other informed on a timely basis of any Adjustment Event or potential Adjustment Event, services; and, if requested by the Founders or Buyer, shall meet on a regular basis to discuss such actual or prospective Adjustment Events. (iii) Nothing in this Agreement shall be interpreted as a restriction or limitation on Buyer’s right or ability to (w) restructure or materially change the Company, its operations or its ongoing business practices (as conducted prior to Closing consistent with past practice) following the Closing, (x) merge or consolidate the Company or its operations into, or otherwise transfer or assign the Company or its operations to Buyer or any of Buyer’s Affiliates (an “Affiliate Business”), (y) acquire (or to cause the Company to acquire) by purchase, exchange, merger, asset sale, or otherwise, any other Person, whether or not engaged in a business similar or related to the Company (an “Acquired Business”), (z) to transfer or assign to the Company any of the business, operations or assets of Buyer or its Affiliates (“Company Transfers”). The Sellers shall not have any rights or interests in or relating to any such Affiliate Business, Acquired Business, or Company Transfers9.4.4. In the event Purchaser closes any portion of an Adjustment Eventthe Business during the Second Earnout Payment Period, other than an Adjustment Event required by make a change in Law following mutually agreed upon (with LLC Seller) reduction to the date of this Agreementapplicable Target Revenue Amount(s) (on a pro-rata basis for the terminated period) to remove the relevant revenue from the applicable target amount; provided, however that, for purposes of the calculation this Section 9.4.4, any transfer of all or a portion of the Contingent Payment deliverable hereunder, Buyer and the Sellers’ Representative shall agree on equitable adjustments in good faith Business by Purchaser to EBITDA during the Earnout Period and, as applicable, LTM EBITDA, to exclude any financial impact (whether positive or negative) of such Adjustment Event on the operations or financial results another portion of the Company following such transactionBusiness shall not be deemed a “closure” of the portion of the Business from which the transfer was made.

Post-Closing Operation of the Business. (ia) Subject to From and after the terms and conditions of this Agreement, subsequent to the ClosingClosing Date, Buyer will have the power and right to control the business and operations of Buyer (including the CompanyTransferred Companies and the Business) in its discretion; providedprovided that such business and operations shall be conducted using the good faith, howeverreasonable business judgment of the officers, directors and other executives of Buyer consistent with reasonably prudent business practices; provided further, that Buyer shall (A) maintain the records of the Company and Buyer in a manner permitting accurate preparation of financial statements consistent with this Section 1.04 and permitting the good faith determination of the Contingent Payment as provided in this Section 1.04, (B) operate the business of the Company in good faith and in a manner reasonably intended for the Sellers to receive the Maximum Number of Contingent Shares and the Maximum Amount of Contingent Cash; provided that Buyer and its Affiliates shall will not be required to take any action intended to benefit reduce or eliminate the Company and adversely impact the business amount of Buyer or its other Affiliates, and (C) not take any action that is primarily intended Earn-Out Payments to adversely affect the ability of the Sellers to earn the Contingent Considerationwhich Seller would otherwise be entitled. (iia) Prior to the payment Within 15 days of the Contingent Payment, if anyInitial Earn-Out Measurement Date, Buyer shall deliver to Seller a statement (the Sellers’ Representative“Initial Earn-Out Statement”) setting forth the Qualified MFLMS Customers as of the Initial Earn-Out Measurement Date, within 45 if any, and the aggregate percentage of MFLMS Gross Sales attributable to such Qualified MFLMS Customers. Within 15 days of the Final Earn-Out Measuring Date, Buyer shall deliver to Seller a statement (the “Final Earn-Out Statement” and, together with the Initial Earn-Out Statement, the “Earn-Out Statements”) setting forth (i) the Qualified MFLMS Customers as of the Final Earn-Out Measuring Date, if any, and the aggregate percentage of MFLMS Gross Sales attributable to such Qualified MFLMS Customers, (ii) the Qualified VA/LI Customers as of the Final Earn-Out Measuring Date, if any, and the aggregate percentage of VA/XX Xxxxx Sales attributable to such Qualified VA/LI Customers and (iii) any Earn-Out Payments to which Seller is entitled. (b) During the 30-day period after Buyer’s delivery of the applicable Earn-Out Statement, Seller shall be permitted to review the MFLMS Agreements, VA/LI Agreements and any books and records of the Buyer relating to the calculations of the aggregate percentage of MFLMS Gross Sales attributable to Qualified MFLMS Customers or the aggregate percentage of VA/XX Xxxxx Sales attributable to Qualified VA/LI Customers, as applicable. Unless Seller notifies Buyer prior to the end of each quarter during such 30- day period of any objection (an “Earn-Out Notice of Objection”) to the Earnout Period (i.e., each of the four, separate three-month periods during the Earnout Period), a financial report setting forth Buyer’s calculation of EBITDA for such quarter aggregate percentages or the Earn-Out Payments to which Seller is entitled, the applicable Earn-Out Statement shall become final and binding. Any Earn-Out Notice of Objection shall specify in writing in reasonable detaildetail the nature and amount of any objections. (c) If Buyer properly delivers an Earn-Out Notice of Objection to Buyer within such 30- day period, Buyers and Seller shall schedule an in-person meeting, if reasonably feasible, at a mutually acceptable location or shall schedule one or more conference calls to address Seller’s objections, and Buyer agrees to promptly provide such supporting documentation as the Sellers’ Representative may reasonably request. The Founders, the Company, Buyer and the Sellers’ Representative agree to keep each other informed on a timely basis of any Adjustment Event or potential Adjustment Event, and, if requested by the Founders or Buyer, Seller shall meet on a regular basis to discuss such actual or prospective Adjustment Events. (iii) Nothing in this Agreement shall be interpreted as a restriction or limitation on Buyer’s right or ability to (w) restructure or materially change the Company, its operations or its ongoing business practices (as conducted prior to Closing consistent with past practice) following the Closing, (x) merge or consolidate the Company or its operations into, or otherwise transfer or assign the Company or its operations to Buyer or any of Buyer’s Affiliates (an “Affiliate Business”), (y) acquire (or to cause the Company to acquire) by purchase, exchange, merger, asset sale, or otherwise, any other Person, whether or not engaged in a business similar or related to the Company (an “Acquired Business”), (z) to transfer or assign to the Company any of the business, operations or assets of Buyer or its Affiliates (“Company Transfers”). The Sellers shall not have any rights or interests in or relating to any such Affiliate Business, Acquired Business, or Company Transfers. In the event of an Adjustment Event, other than an Adjustment Event required by a change in Law following the date of this Agreement, for purposes of the calculation of the Contingent Payment deliverable hereunder, Buyer and the Sellers’ Representative shall agree on equitable adjustments endeavor in good faith to EBITDA resolve Seller’s objections included in the Earn-Out Notice of Objection during the Earnout Period and30-day period commencing on the date Buyer receives the Earn-Out Notice of Objection. If Seller, on the one hand, and Buyer, on the other hand, are able to resolve all objections included in the Earn-Out Notice of Objection within such 30-business day period, then the parties shall revise the Earn-Out Statement to reflect such resolution and the Earn-Out Statement, as applicableso revised, LTM EBITDAshall become final and binding. If Seller, to exclude any financial impact (whether positive or negative) of such Adjustment Event on the operations or financial results one hand, and Buyer, on the other hand, are unable to resolve all objections in the Earn-Out Notice of Objection within such 30-day period, then the Company following parties shall be entitled to rely on the provisions of Article X hereto to resolve such transactiondispute.