Common use of Operational Covenants Clause in Contracts

Operational Covenants. Without the prior written consent of Shareholder, which shall not be unreasonably withheld, PainCare 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, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that 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 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 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 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 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 9.9 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation in each of any two (2) consecutive calendar quarters are less than $600,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $100,000.

Operational Covenants. Without the prior written consent of Shareholderthe Sellers, which shall not be unreasonably withheld, PainCare 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 affiliatesAffiliates, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that 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 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 Surviving Corporation Subsidiary or its assets, merge the Surviving Corporation Subsidiary with any other entity, sell a controlling interest in the Surviving CorporationSubsidiary, or make any fundamental change in the business of the Surviving Corporation 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 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 9.9 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation Company in each of any two (2) consecutive calendar quarters during any Formula Period are less than $600,0002,062,500, or if the Formula Period Profits of the Surviving Corporation Company in one (1) calendar quarter during any Formula period is less than $100,000962,500. 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, provided that PainCare shall have commenced in good faith and is diligently pursuing its efforts to cure such default during such 30-day period) of receiving a written notice of default from the Sellers, PainCare shall be deemed to be in breach of this Agreement.

Operational Covenants. Without the prior written consent of Shareholder▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, which shall not be unreasonably withheld, PainCare 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, 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 ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; (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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that 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 which at the time of such undertaking could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (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 unless such action(s) 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 Revenues 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 9.9 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation in each of any two (2) consecutive calendar quarters are less than $600,000120,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $100,00080,000. 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, provided that Buyer shall have commenced in good faith and is diligently pursuing its efforts to cure such default during such 30-day period) of receiving a written notice of default from the Stockholder, Buyer shall be deemed to be in breach of this Agreement.

Operational Covenants. Without the prior written consent of ShareholderShareholders, which shall not be unreasonably withheld, PainCare 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, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that 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 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 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 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 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 9.9 shall become null and void and of no further force or effect if (i) the Formula Period Profits of the Surviving Corporation in each of any three (3) consecutive Formula Period calendar quarters (taken in the aggregate) are less than $1,200,000, or in any two (2) consecutive Formula Period calendar quarters are less than $600,000300,000, or if (ii) the Formula Period Profits Management Fee (as described in the Management Agreement of the Surviving Corporation in one (1even date herewith) calendar quarter is less than $100,000not paid within 30 days of its due date.

Operational Covenants. Without the prior written consent of Shareholder, which shall 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 affiliatesaffiliates 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 to, amend or terminate any agreement which at the time such agreement is entered into into, amended or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that is 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 which at or that are reasonably necessary in light of the time Surviving Corporation’s results of such undertaking could reasonably be expected to have a material adverse effect on the Formula Period Profitsoperation; (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 unless such action(sexcept 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 not reasonably be expected to have a material adverse effect on the Formula Period Profits or that is 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 9.9 9.8 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation in each of for any two (2) consecutive calendar quarters are less than $600,000600,000 combined, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $100,000250,000, 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 Shareholder, which shall not be unreasonably withheld, PainCare 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 affiliatesaffiliates or otherwise, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that 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 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; (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 unless such action(s) 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 or that is reasonably necessary in light of the Surviving Corporation’s results of operation; Profits. The parties Parties hereby acknowledge and agree that the foregoing covenants in this Section 9.9 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 in each of 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 ($600,000185,000), 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 ($100,00080,000).

Operational Covenants. Without Tenant agrees: (a) to use, maintain and occupy the Leased Premises in a careful, safe and proper manner; (b) without the prior written consent of ShareholderLandlord, which shall not be unreasonably withheld, PainCare shall not, prior to place or maintain any merchandise or other articles in any vestibule or entry to the conclusion Leased Premises, on the sidewalks or parking lot in the front, rear or sides of the third Formula Period: (a) reorganize the Surviving Corporation, whether by integrating building or consolidating the business of the Surviving Corporation with other operating units of PainCare adjacent thereto or its subsidiaries or affiliates, 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 elsewhere 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; exterior thereof; (c) amend to maintain the articles Leased Premises in a clean, orderly and sanitary condition, free of incorporation insects, rodents, vermin and other pests; (d) not to use, nor permit nor suffer the use of, any apparatus or bylaws instruments for musical or other sound or video reproductions or transmission other than "background music," or any business or mechanical machines in such manner that would result in the sounds emanating therefrom or caused thereby being audible beyond the interior of the Surviving Corporation Leased Premises; (e) not to receive or ship articles, fixtures, or merchandise of any kind other than from that portion of the Leased Premises designated on Exhibit A for such purposes; (f) not to store goods, wares or merchandise on the Leased Premises except for items which Tenant intends to use or offer for sale in the regular course of its business; (g) intentionally omitted; (h) to keep all mechanical apparatus reasonably free of vibration and noise which may be transmitted beyond the Leased Premises; (i) to properly vent and control any odors and not cause or permit objectionable odors to emanate or be dispelled from the Leased Premises; (j) not to obstruct any driveway, corridor, footwalks or parking area, or any other common area; (k) not to conduct or permit to be conducted any auction, fictitious fire sale, going-out-of-business sale or bankruptcy sale, or other similar type sale in or connected with the Leased Premises; (l) not to place a load upon any floor which exceeds the floor load which the floor was designed to carry; (m) not to use the Leased Premises for any unlawful or illegal business, use or purpose, or for any business, use or purpose which is immoral or disreputable, or which is hazardous, or in such manner as to constitute a nuisance of any kind (public or private), or for any purpose or in any way in violation of the certificates of occupancy (or other similar approvals of applicable governmental authorities); (n) to use the parking areas solely for the purpose of parking passenger cars, small vans, and small trucks; (o) not to use the parking areas or any common areas in any way or in any manner that at the time of such amendment could reasonably be expected objectionable to have a material adverse effect on the Formula Period Profits; Landlord, including but not limited to rallies, congregating, loitering, advertising, soliciting or marketing; and (dp) cause the Surviving Corporation not to become a party to or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that 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 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 Surviving Corporation or its assets, merge the Surviving Corporation with any other entity, sell a controlling interest in the Surviving Corporationpark more vehicles than permitted under Landlord's advertised parking ratio. Tenant shall not install, or make permit to be installed, any fundamental change rooftop equipment without the prior written approval of Landlord, which approval may be withheld in the business of the Surviving Corporation unless Landlord’s sole discretion. Any and all rooftop equipment permitted by Landlord pursuant to such action(s) at the time of such undertaking could not reasonably prior written approval shall be expected subject to have a material adverse effect on the Formula Period Profits or that is reasonably necessary in light of the Surviving Corporationseparate license agreement between Landlord and Tenant and Landlord’s results of operation; The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.9 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation in each of any two (2) consecutive calendar quarters are less than $600,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $100,000then applicable rooftop annual rental rate.

Operational Covenants. Without the prior written consent of Shareholderthe Seller, which shall not be unreasonably withheld, PainCare 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 affiliatesAffiliates, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that 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 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 Surviving Corporation Subsidiary or its assets, merge the Surviving Corporation Subsidiary with any other entity, sell a controlling interest in the Surviving CorporationSubsidiary, or make any fundamental change in the business of the Surviving Corporation 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 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 9.9 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation Subsidiary in each of any two (2) consecutive calendar quarters are less than $600,000200,000, or if the Formula Period Profits of the Surviving Corporation Subsidiary in one (1) calendar quarter is less than $100,000. 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, provided that PainCare shall have commenced in good faith and is diligently pursuing its efforts to cure such default during such 30-day period) of receiving a written notice of default from the Seller, PainCare shall be deemed to be in breach of this Agreement.

Operational Covenants. Without the prior written consent of Shareholder, which shall not be unreasonably withheld, PainCare 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 affiliatesaffiliates or otherwise, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that 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 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; (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 unless such action(s) 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 or that is reasonably necessary in light of the Surviving Corporation’s results of operation; Profits. The parties Parties hereby acknowledge and agree that the foregoing covenants in this Section 9.9 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 in each of any two (2) consecutive calendar Formula Period quarters falling within such Formula Period are less than $600,000250,000 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 $100,00075,000.

Operational Covenants. Without the prior written consent of Shareholder, which shall not be unreasonably withheld, PainCare 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, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that 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 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 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 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 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 9.9 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation in each of any two (2) consecutive calendar quarters are less than $600,000150,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $100,00075,000.

Operational Covenants. Without the prior written consent of Shareholder, which shall not be unreasonably withheld, PainCare 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 affiliatesaffiliates or otherwise, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that 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 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; (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 unless such action(s) 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 or that is reasonably necessary in light shall be increased by the amount by which the Formula Period Profits were materially decreased, as 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 9.9 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 in each of 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 ($600,000420,000), 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 ($100,000192,000).

Operational Covenants. Without the prior written consent of the Shareholder, which shall not be unreasonably withheld, PainCare 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, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that 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 which at the time of such undertaking could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (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 unless such action(s) 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 Revenues 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 9.9 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation in each of any two (2) consecutive calendar quarters are less than $600,000500,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $100,000200,000. 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, provided that PainCare shall have commenced in good faith and is diligently pursuing its efforts to cure such default during such 30-day period) of receiving a written notice of default from the Shareholder, PainCare shall be deemed to be in breach of this Agreement.

Operational Covenants. Without the prior written consent of Shareholder, which shall not be unreasonably withheld, PainCare 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, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that 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 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 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 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 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 9.9 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation beginning December 1, 2004 in each of any two (2) consecutive Formula Period calendar quarters are less than $600,000, or if the Formula Period Profits of the Surviving Corporation in one (1) Formula Period calendar quarter is less than $100,000.

Operational Covenants. Without the prior written consent of Shareholder, which shall not be unreasonably withheld, PainCare 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 affiliatesaffiliates or otherwise, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that 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 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; (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 unless such action(s) 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 or that is reasonably necessary in light of the Surviving Corporation’s results of operation; Profits. The parties Parties hereby acknowledge and agree that the foregoing covenants in this Section 9.9 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 in each of any two (2) consecutive calendar Formula Period quarters falling within such Formula Period are less than Three Hundred Seventy Thousand and No/100 Dollars ($600,000370,000), 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 ($100,000160,000).

Operational Covenants. Without the prior written consent of Shareholder, which shall not be unreasonably withheldShareholders, PainCare 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 affiliatesaffiliates or otherwise, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that 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 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; (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 unless such action(s) 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 or that is 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 9.9 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 in each of any two (2) consecutive calendar Formula Period quarters falling within such Formula Period are less than $600,000500,000, 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 $100,000225,000.

Operational Covenants. Without the prior written consent of Shareholderthe Member, which shall not be unreasonably withheld, PainCare 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, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that 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 which at the time of such undertaking could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (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 unless such action(s) 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 Revenues 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 9.9 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation in each of any two (2) consecutive calendar quarters are less than $600,000250,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $100,000. 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, provided that PainCare shall have commenced in good faith and is diligently pursuing its efforts to cure such default during such 30-day period) of receiving a written notice of default from the Member, PainCare shall be deemed to be in breach of this Agreement.

Operational Covenants. Without the prior written consent of Shareholder, which shall not be unreasonably withheldthe Shareholders, PainCare 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 affiliatesaffiliates or otherwise, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that 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 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; (f) sell a material portion of the Surviving Corporation Subsidiary or its assets, merge the Surviving Corporation Subsidiary with any other entity, sell a controlling interest in the Surviving CorporationSubsidiary, or make any fundamental change in the business of the Surviving Corporation Subsidiary unless such action(s) 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 or that is reasonably necessary in light of the Surviving Corporation’s results of operation; Profits. The parties hereby acknowledge and agree that the foregoing covenants in this Section 9.9 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 in each of any two (2) consecutive calendar Formula Period quarters falling within such Formula Period are less than $600,000fifty 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 $100,000twenty-five percent (25%) of the Earnings Threshold for such quarterly period (i.e., less than twenty-five percent (25%) of one-quarter of the Provider Network Earnings Threshold).

Operational Covenants. Without the prior written consent of Shareholder, which shall not be unreasonably withheld, PainCare 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, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect on the Formula Period Profits or that 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 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 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 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 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 9.9 shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation in each of any two (2) consecutive calendar quarters are less than $600,000175,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $100,00080,000.

Operational Covenants. Without the prior written consent of Shareholder, which shall not be unreasonably withheld, PainCare 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 affiliatesaffiliates or otherwise, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits or that 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 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; (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 unless such action(s) 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 or that is reasonably necessary in light of the Surviving Corporation’s results of operation; Profits. The parties Parties hereby acknowledge and agree that the foregoing covenants in this Section 9.9 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 in each of 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 ($600,000185,000), 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 ($100,00080,000).

Operational Covenants. Without the prior written consent of the Shareholder, which shall not be unreasonably withheld, PainCare 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, 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 or terminate any agreement which at the time such agreement is entered into or terminated could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period Profits Revenues or that 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 which at the time of such undertaking could reasonably be expected to have a material adverse effect Material Adverse Effect on the Formula Period ProfitsRevenues; (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 unless such action(s) 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 Revenues 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 9.9 conditions shall become null and void and of no further force or effect if the Formula Period Profits of the Surviving Corporation in each of any two (2) consecutive calendar quarters are less than $600,000175,000, or if the Formula Period Profits of the Surviving Corporation in one (1) calendar quarter is less than $100,00080,000. 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, provided that PainCare shall have commenced in good faith and is diligently pursuing its efforts to cure such default during such 30-day period) of receiving a written notice of default from the Shareholder, PainCare shall be deemed to be in breach of this Agreement.