Post-Closing Operation of the Company. Subject to the terms of this Agreement, subsequent to the Closing, Buyer shall have sole discretion with regard to all matters relating to the operation of the Company; provided, that Buyer shall not, directly or indirectly, take any actions in bad faith that would have the purpose of avoiding or reducing any of the Earn-out Payments hereunder. Notwithstanding the foregoing, Buyer has no obligation to operate the Company in order to achieve any Earn-out Payment or to maximize the amount of any Earn-out Payment.
Post-Closing Operation of the Company. The Buyer acknowledges that given the method in which the Earn-out Payment is calculated, it is critical that the Buyer preserves the essence and character of the Business during the Calculation Period.
Post-Closing Operation of the Company. Notwithstanding anything herein to the contrary, following the Closing and until December 31, 2021, the Buyer and its Affiliates, including Parent, shall:
(i) act in good faith with respect to the oversight and control of the business and affairs of the Company and its Subsidiaries;
(ii) use commercially reasonable efforts to continue the Business and provide capital as reasonably required for such continued operations;
(iii) not willfully divert any sales or income away from the Company or its Subsidiaries;
(iv) use commercially reasonable efforts to promote the Company and its Subsidiaries and preserve the goodwill and material business relationships of the Company and its Subsidiaries; and
(v) not, directly or indirectly, take any actions in bad faith that would have the purpose of avoiding or reducing payment of the Milestone Amount.
Post-Closing Operation of the Company. Except as explicitly provided below in this Section 2.13, Parent will have sole discretion with regard to all matters relating to the operation of the BioD Companies after the Closing; provided, however that Parent covenants and agrees, until the end of the Second Earn Out Year: (i) to manage the business and affairs of the BioD Companies in good faith, (ii) not to undertake any action with the intent to limit, delay or thwart the vesting of any Earn Out Payment or Product Payment, (iii) to maintain a separate accounting of the Net Sales of the BioD Companies and complete and accurate books and records relevant to those Net Sales and allow Representative reasonable access to examine those books and records upon reasonable notice; (iv) not to prohibit the BioD Companies from selling any current or future BioD Company Products to any clinical specialty outside the Field; and (iv) ****.
Post-Closing Operation of the Company. Each Party acknowledges and agrees that (i) the timing and eligibility for the Earnout Payment is speculative and subject to numerous factors outside the control of the Buyer and the Sellers, (ii) there is no guarantee that the specific criteria to achieve the Earnout Payment expressly set forth in this Agreement will be satisfied and the Buyer has not promised the payment of the Earnout Payment in the absence of meeting such specific criteria, (iii) neither the Buyer nor any of its Affiliates, nor any of their respective officers, managers, directors, employees or agents, owes a fiduciary duty, whether express or implied, to the Sellers with respect to the Earnout Payment, (iii) the parties solely intend the express provisions of this Agreement to govern their relationship with respect to the Earnout Payment, (iv) the Buyer shall have full discretion with regard to matters relating to the operation of the Stores following the Closing, provided that the Buyer shall use commercially reasonable efforts to run the Stores as sellers of specialty food, grocery, and related items, (v) the Buyer makes no representation and express no opinion as to the likelihood that the Stores shall perform in a manner which shall result in payment of the Earnout Payment, and (vi) the contingent right to receive the Earnout Payment is not an investment in the Buyer, the Stores or any of their Affiliates. Notwithstanding anything else contained herein, none of the Buyer nor any of its Affiliates shall have any obligation to operate the Stores in order to achieve any Earnout Payment, and the Seller shall not interfere in the Stores’ operations or internal affairs to affect the Earnout Payment; provided, however, that Buyer shall not take, directly or indirectly, any actions in bad faith the primary purpose of which is to avoid or reduce the Earnout Payment hereunder. In the event that Buyer decides to permanently close any of the Stores prior to the end of the Earnout Period due to financial or operational issues as determined by the Buyer in its sole discretion (each such Store, a “Closed Store”), then for purposes of calculating the Earnout Payment, the Revenues of the Closed Store will be determined as follows: (a) Revenues of the Closed Store from October 1, 2022 until the date the Store is closed (the “Operating Period”), plus (b) the product of (i) Revenues of the Closed Store during the Operating Period divided by the number of months in the Operating Period (the “Monthly R...
Post-Closing Operation of the Company. Subject to the terms of this Agreement, subsequent to the Closing, Buyer shall have sole discretion with regard to all matters relating to the operation of the Company; provided, that through March 31, 2011, Buyer shall not, directly or indirectly, take any actions in bad faith that would have the purpose of increasing any amounts which may be payable to Buyer pursuant to Section 1.4(c) hereunder and shall allow Chan Xxx Xxxxx, Sin Xxxxx Xxxx and Ho Yin Ping to conduct the Company’s daily operation in a manner materially consistent with its past practice.
Post-Closing Operation of the Company. As set forth in the Post Effective Operating Agreement, the Purchaser hereby agrees that the Company and the Members will be entitled to the following:
(a) The Company’s day to day operations shall be managed by Members or any designees thereof as contemplated by the Consulting Agreement and the Xxxxxxxxxx Employment Agreement.
(b) In the event the Senior Lender or it successor no longer requires the Key Man Insurance Policies currently in place on the lives of certain personnel of the Company, the Members shall be entitled to take assignment of all such policies.
(c) The Purchaser shall cooperate with any cancellation, termination or replacement of the current personal guarantees of the Members for any of the Company’s material Contracts, including, but not limited to, the Company’s Lease, dated as of _______________________.
(d) In the event the Purchaser shall fail to make payments pursuant to the Purchase Price Notes, the Members shall be entitled to issue additional Membership Interests of the Company in their sole and absolute discretion.
(e) The Purchaser shall be responsible for any and all additional capital contributions or liquidity requirements of the Company following the Closing Date; provided that, the Purchaser shall not be entitled to cause any action to issue any additional Membership Interests of the Company during the Anti-Dilution Period.
Post-Closing Operation of the Company. Subject to the terms of this Agreement and the other Transaction Agreements, subsequent to the Closing, during the Earnout Period, Purchaser shall:
(i) continue to market and sell the Products using the “CXApp” brand name;
(ii) use commercially reasonable efforts to secure or maintain physical office space with the assistance of the Sellers’ Representative, which may be through a third-party arrangement, in Pleasanton, California, Manilla, Philippines and Zhuhai, China, subject to applicable Law and Purchaser’s COVID-19 policies; provided that the Tax and accounting implications of securing or maintaining such office space are not materially adverse to Purchaser; and provided further that if the monthly lease expense for any such location exceeds $5,500, Purchaser shall not be obligated to secure or maintain physical office space in such location;
(iii) maintain separate books and records for the Company;
(iv) generate separate financial statements for the Company to allow the Earnout Target to be calculated and reviewed in accordance with this Agreement;
(v) use commercially reasonable efforts to achieve the Earnout Target; or
(vi) not, directly or indirectly, take any actions in bad faith that would have the purpose of avoiding or reducing any of the Earnout Payment hereunder.
Post-Closing Operation of the Company. The Buyer hereby covenants and agrees that, during the period beginning on the Closing Date and continuing until the Stockholders’ and Optionees’ right to receive the applicable portion of the Earnout Amount with respect to each of the Earnout Events shall have been finally determined in accordance with Section 2(e), the Buyer shall (i) use commercially reasonable efforts to enable the Earnout Events to occur as contemplated by Section 2(e) hereof and (ii) use commercially reasonable efforts to maintain the Company’s customers, customer relationships and Material Contracts, and to cause the Company to enter into contracts in the Sales Pipeline.
Post-Closing Operation of the Company. The parties acknowledge and agree that, from and after the Closing Date, the management and operations of the Company and their businesses will be at Purchaser’s sole discretion.
