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

Post-Closing Operation of the Business. (a) From and after the Closing Date, Buyer will have the power and right to control the business and operations of Buyer (including the Transferred Companies and the Business) in its discretion; provided that such business and operations shall be conducted using the good faith, reasonable business judgment of the officers, directors and other executives of Buyer consistent with reasonably prudent business practices; provided further, that Buyer will not take any action intended to reduce or eliminate the amount of any Earn-Out Payments to which Seller would otherwise be entitled. (a) Within 15 days of the Initial Earn-Out Measurement Date, Buyer shall deliver to Seller a statement (the “Initial Earn-Out Statement”) setting forth the Qualified MFLMS Customers as of the Initial Earn-Out Measurement Date, 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/▇▇ ▇▇▇▇▇ 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/▇▇ ▇▇▇▇▇ Sales attributable to Qualified VA/LI Customers, as applicable. Unless Seller notifies Buyer prior to the end of such 30- day period of any objection (an “Earn-Out Notice of Objection”) to the calculation of such 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 detail 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 and Seller shall endeavor in good faith to resolve Seller’s objections included in the Earn-Out Notice of Objection during the 30-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 so revised, shall become final and binding. If Seller, on the 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 parties shall be entitled to rely on the provisions of Article X hereto to resolve such dispute.

Post-Closing Operation of the Business. Notwithstanding anything to the contrary in this Agreement or otherwise, each of Buyer and Seller acknowledges, understands and agrees that: (a) From the terms of this Section 2.10 and after the Closing Date, possibility of receiving an Earnout Amount comprises a material inducement for Seller to enter into this Agreement; (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 Transferred Companies and the Business) in its their sole discretion; provided that such business , including with respect to the offering and operations shall be conducted using the good faith, reasonable business judgment of the officers, directors and other executives of Buyer consistent with reasonably prudent business practices; provided further, that Buyer will not take any action intended to reduce or eliminate the amount pricing of any Earn-Out Payments to which Seller would otherwise be entitled. (a) Within 15 days of the Initial Earn-Out Measurement DateBusiness Products; provided, that, Buyer shall deliver to Seller a statement (the “Initial Earn-Out Statement”) setting forth the Qualified MFLMS Customers as of the Initial Earn-Out Measurement Date, 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/▇▇ ▇▇▇▇▇ 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 maintain separate books and records of the Buyer relating Business to the calculations of the aggregate percentage of MFLMS Gross Sales attributable extent necessary to Qualified MFLMS Customers or the aggregate percentage of VA/▇▇ ▇▇▇▇▇ Sales attributable fulfill Buyer’s obligations with respect to Qualified VA/LI Customers, as applicable. Unless Seller notifies Buyer prior to the end of such 30- day period of any objection (an “Earn-Out Notice of Objection”) to the calculation of such 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 detail the nature and amount of any objections. this Section 2.10; (c) If Buyer properly delivers and its Affiliates 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 Earn-Out Notice investment in Buyer or its Affiliates and such contingent right shall not entitle Seller to any rights as equityholders of Objection 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 Buyer within such 30- day period, Buyers govern all of their rights and Seller shall schedule an in-person meetingobligations, if reasonably feasibleany, at with respect to the Total Store Count, Total Revenue and Earnout Amounts contemplated pursuant to this Section 2.10; provided, however, that, (i) Buyer shall not take any action, or refrain from taking any action with the primary purpose of causing an Earnout Amount to not be payable hereunder or (ii) sell, exchange or transfer all or substantially all of the Purchased Assets to a mutually acceptable location third party in a single transaction or shall schedule one or more conference calls to address Seller’s objections, and series of related transactions unless such third party expressly assumes the obligations of Buyer and Seller shall endeavor in good faith to resolve Seller’s objections included in the Earn-Out Notice of Objection during the 30-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 so revised, shall become final and binding. If Seller, on the 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 parties shall be entitled to rely on the provisions of Article X hereto to resolve such disputeunder this Section 2.10.

Post-Closing Operation of the Business. (a) From Notwithstanding anything to the contrary herein, from and after the Closing DateClosing, Buyer will the Purchaser shall have sole and absolute discretion with regard to all matters relating to the power and right to control the business and operations operation of Buyer (including the Transferred Companies and the Business. Seller hereby acknowledges that (i) Purchaser intends to suspend the Earn-Out Product operations immediately following the Closing, and (ii) Purchaser may never resume, and/or may permanently discontinue, the Earn-Out Product operations. The Purchaser has no obligation to operate the Business in its discretion; provided that such business and operations shall be conducted using the good faith, reasonable business judgment of the officers, directors and other executives of Buyer consistent with reasonably prudent business practices; provided further, that Buyer will not take order to achieve any action intended Earn-Out Payment or to reduce or eliminate maximize the amount of any Earn-Out Payments Payment. This Agreement is not intended to, and does not, create or impose any fiduciary duty on Purchaser or any of its Affiliates. Further, Seller hereby waives any fiduciary duties that, absent such waiver, may be implied by applicable Law, and in doing so, recognizes, acknowledges and agrees that the duties and obligations of Purchaser are only as expressly set forth in this Agreement. The Seller further acknowledges that the Purchaser and its Affiliates may have business interests or may engage in other business ventures of any nature or description whatsoever, whether currently existing or hereafter created, and may compete, directly or indirectly, with the Business; neither the Purchaser nor any of its Affiliates shall incur any liability to which the Seller would otherwise be entitled. or any of its Affiliate as a result of the Purchaser’s or any of its Affiliate’s pursuit of such other business interests, ventures and competitive activity; and the Seller shall not have any right to participate in such other business ventures or to receive or share in any income or profits derived therefrom. Notwithstanding anything to the contrary set forth herein, the Seller acknowledges and agrees that (a) Within 15 days there is no assurance that such Party or any of the Initial Earn-Out Measurement Date, Buyer shall deliver to Seller a statement (the “Initial Earn-Out Statement”) setting forth the Qualified MFLMS Customers as of the Initial Earn-Out Measurement Date, 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/▇▇ ▇▇▇▇▇ Sales attributable to such Qualified VA/LI Customers and (iii) its Affiliates will receive any Earn-Out Payments to which Seller is entitled. (b) During the 30-day period after Buyer’s delivery under this Agreement or otherwise, and none of the applicable Earn-Out Statement, Purchaser or any of its Affiliates have promised or projected any amounts to be received by the 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/▇▇ ▇▇▇▇▇ Sales attributable to Qualified VA/LI Customers, its Affiliates under this Agreement as applicable. Unless Seller notifies Buyer prior to the end of such 30- day period of any objection (an “Earn-Out Notice of Objection”) to the calculation of such aggregate percentages or the Earn-Out Payments or otherwise, (b) none of the Purchaser or any of its Affiliates owes any express or implied duty to which the Seller is entitledor its Affiliates, the applicable Earn-Out Statement shall become final including any implied duty of good faith and binding. Any Earn-Out Notice of Objection shall specify in writing in reasonable detail the nature fair dealing, and amount of any objections. (c) If Buyer properly delivers an Earn-Out Notice the Parties intend the express provisions of Objection this Agreement 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 and Seller shall endeavor in good faith to resolve Seller’s objections included in the Earn-Out Notice of Objection during the 30-day period commencing on the date Buyer receives the Earn-Out Notice of Objectiongovern their contractual relationship. If Seller, on the one handbehalf of itself and its Affiliates, hereby waives any fiduciary duty or express or implied duty of Purchaser or its Affiliates, including any implied duty of good faith 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 so revised, shall become final and binding. If Seller, on the 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 parties shall be entitled to rely on the provisions of Article X hereto to resolve such disputefair dealing.

Post-Closing Operation of the Business. During the period from the Closing Date to March 30, 2013 (a) From the “Second Earnout Payment Period”), Purchaser commits to do the following (collectively, the “Operating Commitments”): 9.4.1. Operate the Assets and after the Business as a separate profit center and shall track the results of the 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 substantially similar in all material respects to the customer-facing operations of the Business prior to the Closing Date, Buyer will have except that Sellers acknowledge that, under Purchaser’s ownership, the power and right to control the business and operations of Buyer (including the Transferred Companies and the Business) in its discretion; provided that such business and operations shall be conducted using the good faithBusiness will, reasonable business judgment of the officersamong other things, directors and other executives of Buyer consistent with reasonably prudent business practices; provided further, that Buyer will not take any action intended to reduce or eliminate the amount of any Earn-Out Payments to which Seller would otherwise be entitled. (a) Within 15 days of the Initial Earn-Out Measurement Date, Buyer shall deliver to Seller a statement (use the “Initial Earn-Out Statement”) setting forth shared services” organization of Purchaser for the Qualified MFLMS Customers as of services it renders, including, without limitation, services related to the Initial Earn-Out Measurement Datefollowing: human resources, if anyaccounting and finance (including, without limitation, purchasing, budgeting, bonding, accounting and the aggregate percentage of MFLMS Gross Sales attributable to such Qualified MFLMS Customers. Within 15 days of the Final Earn-Out Measuring Dateproject pro forma and pricing approval), Buyer shall deliver to Seller a statement (the “Final Earn-Out Statement” andlegal and contract management, together with the Initial Earn-Out Statementfleet, the “Earn-Out Statements”) setting forth (i) the Qualified MFLMS Customers as of the Final Earn-Out Measuring Dateinsurance, if anyfacilities, information technology and the aggregate percentage of MFLMS Gross Sales attributable to such Qualified MFLMS Customerscommunications, (ii) the Qualified VA/LI Customers as of the Final Earn-Out Measuring Dateinsurance and travel, if any, and the aggregate percentage of VA/▇▇ ▇▇▇▇▇ 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 Buyerbe subject to certain senior leadership reporting responsibilities common to Purchaser and other business units of Purchaser’s delivery of the applicable Earn-Out StatementAffiliates, Seller shall and (c) be permitted to review the MFLMS Agreements, VA/LI Agreements and any books and records of the Buyer relating subject to the calculations competitive concerns of other Affiliates of Purchaser and, as such, the aggregate percentage Business will not be able to bind itself to engagements without first complying with the contracting policies and approval procedures of MFLMS Gross Sales attributable to Qualified MFLMS Customers or the aggregate percentage of VA/▇▇ ▇▇▇▇▇ Sales attributable to Qualified VA/LI CustomersPurchaser’s parent, including, as applicable, consultation with executive management of such parent so that such executive management (with support from officers of the 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. Unless Seller notifies Buyer prior Not divert to Purchaser or any Affiliate of Purchaser any existing customer or customer accounts of the Business, or accounts generated by the Business in the normal course after the Closing, without adequate financial provision, reasonably acceptable to the end Sellers, being made to appropriately credit the Business as if it had performed the services; and 9.4.4. In the event Purchaser closes any portion of such 30- day period of any objection the Business during the Second Earnout Payment Period, make a mutually agreed upon (an “Earnwith LLC Seller) reduction to the applicable Target Revenue Amount(s) (on a pro-Out Notice of Objection”rata basis for the terminated period) to remove the calculation of such aggregate percentages or the Earn-Out Payments to which Seller is entitled, relevant revenue from the applicable Earn-Out Statement target amount; provided, however that, for purposes of this Section 9.4.4, any transfer of all or a portion of the Business by Purchaser to another portion of the Business shall become final and binding. Any Earn-Out Notice not be deemed a “closure” of Objection shall specify in writing in reasonable detail the nature and amount portion of any objectionsthe Business from which the transfer was made. (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 and Seller shall endeavor in good faith to resolve Seller’s objections included in the Earn-Out Notice of Objection during the 30-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 so revised, shall become final and binding. If Seller, on the 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 parties shall be entitled to rely on the provisions of Article X hereto to resolve such dispute.